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General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 03
Cause of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .. 06
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 09
Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .. . . . 16
Partiers to a Civil Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Pleadings in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 23
Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 29
Notice of Lis Pendens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Summons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 32
Motions in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 39
Motion for Bill of Particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 41
Computation of Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 42
Motion to Dismiss by the Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .43
Motion for Amendment of Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 49
Motion for Dismissal of Action by the Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 53
Motion to Intervene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 56
Answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 57
Counterclaim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 60
Cross Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 62
Third Party Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Motion to Declare Defendant in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. 64
Reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 66
Motion for Judgment on the Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 67
Calendar of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 67
Pre-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. 68
The contents of this note were lifted from Justice Florenz Regalados book [Remedial Law Compendium], some were
transcribed from the audio lectures of Dean Willard Riano [San Sebastian- Recolletos], Dean Tranquil Salvador III
[Ateneo].
1
Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 75
Modes of Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 77
Refusal to Comply with Modes of Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 88
Subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 89
Consolidation and Severance of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 92
Trial by Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 93
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 94
Demurrer to Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 96
Judgments, Final Orders and Entry Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 98
Motion for new trial or Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 102
General principles on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 106
Appeal from MTC to RTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 109
Appeal from RTC to CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Petition for Review from the RTC to CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 113
Appeal by Certiorari to the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 114
Motion for Relief from Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 116
GENERAL PRINCIPLES
Important principles to consider:
1. No one can stop me from becoming a lawyer! The Supreme Court cannot, all that it can do is to delay me 4
times!
2. Remedial law is based on human experience. It was based on the "civilized" reaction of a person when
confronted with certain situations. E.g. Pag hinabla ang isang tao, the natural reaction would be denial
(defense) or ihahabla din iyong naghabla sa kanya (counterclaim).
Concept of Remedial Law
Remedial law is that branch of law which prescribes the method of enforcing rights or obtaining redress for
their invasion (Bustos vs. Lucero, 81 Phil. 640).
It is also known as procedural law.
Another name is adjective law, for it describes the manner by which a person may enforce his rights
(American concept).
SUBSTANTIVE LAW
1.
2.
3.
4.
5.
REMEDIAL LAW
1.
2.
3.
4.
5.
Civil Procedure
The body of law usually rules enacted by legislature or courts governing the methods and practice use in
civil litigation.
Cases not covered by the Rules of Court
1. Election Cases
2. Land registration proceedings
3. Cadastral proceedings
4. Naturalization proceedings
5. Insolvency proceedings
6. Court marshall proceedings
7. Administrative proceedings.
8. Quasi-judicial
Note: The tribunal may adopt the rules of court by analogy in case there is no prescribe rules for its
proceedings.
What is a court?
It is an organ of government belonging to the judicial department the function of which is the application of
the laws to the controversies brought before it as well as the public administration of justice.
The entity in the government organized for the proper administration of justice at the time and place
prescribed by law. It is an entity in which a portion of the judicial power is vested.
It is a board or tribunal which decides a litigation or contest.
1.
2.
3.
4.
COURT
A tribunal officially assembled under
authority of law
A being in imagination comparable to a
corporation
An entity
Possesses the elements of stability and
permanency
1.
2.
3.
4.
JUDGE
Simply an officer of such tribunal
A physical person
A person appointed to the court
May come and go anytime
1.
2.
When compelling reasons so warrant or when the purpose of justice requires it.
3.
4.
5.
To relieve a litigant of an injustice commensurate with his failure to comply with the prescribed
procedure and the mere invocation of substantial justice is not a magical incantation that will
automatically compel the Court to suspend procedural rules.
When transcendental matters of life, liberty or state security are involved.
The constitutional power of the Supreme Court to promulgate rules of practice and procedure
necessarily carries with it the power to overturn judicial precedents on points of remedial law
through the amendment of the Rules of Court.
1.
2.
3.
4.
The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases;
They shall be uniform for all courts of the same grade;
They shall not diminish, increase, or modify substantive rights;
The power to admit attorneys to the Bar is not an arbitrary and despotic one, to be exercised at the pleasure
of the court, or from passion, prejudice or personal hostility, but is the duty of the court to exercise and
regulate it by a sound and judicial discretion.
Role of the Judiciary: are the provisions of the Rules of Court self-executing?
No, kahit nakita kayo ng judge na nag-aaway at nagpapatayan, hindi niya pwedeng sabihin na pumunta
kayo sa korte for him to decide your case. All that he can do is to wait for a complaint to be filed in court.
The rules will only have life upon the institution of a civil action!
What is a judicial inquiry?
It is a stage where the court decides constitutional questions that crop up in the process.
These are the requisites of judicial inquiry:
a. Actual case in controversy- there is a case filed in court which is ripe for judicial adjudication.
b. Proper party- the one who raised the question is the one who was injured or is in imminent
danger of sustaining an injury.
c. The question must be raised at the earliest opportunity.
d. There is a need for deciding constitutional question.
Some Condition Precedents before Filing a Case in Court:
1. In a case for collection of money- there must be demand to pay
2. In cases of unlawful detainer- there must be a demand to pay rent and to vacate the premises.
3. Where the case concerns family members it must first be settled among them before a civil action is filed in
court.
4. Katarungang Pambarangay Conciliation Procedure (Sections 399-422 of LGC)
Rules in the Lupon:
1. All actions, except those falling within the exceptions, shall be referred to the LUPON before it
must be instituted in court.
2. No lawyer is allowed to appear as counsel in the barangay.
3. Only natural persons can appear in the barangay.
Illustration:
Don Santiago died. He left a mass of properties. There was a conflict among the heirs. One heir
immediately brought the case to the court without going first to the Lupon. The other heirs
move to dismiss the case. Can the motion to dismiss prosper?
Answer: No! Because, upon the death of a person his estate acquires a legal personality.
Under the rules, referring a case to the Lupon is only viable if there is no juridical person
involve. The estate of Don Santiago is considered by law as a juridical person. Ergo,
referral to the Lupon is not necessary.
NOTE:
1. Decisions of the LUPON becomes final and executory after 10 days from pronouncement of
judgment. Ergo, any repudiation thereto must be done within the 10 day period.
2. The decision must be enforced within 60 days from the DATE of PAYMENT stated in the
settlement judgment; otherwise plaintiff may file a civil action in court.
3. If settlement is not possible, plaintiff can obtain a certification to file action in court which is
to be attached to the civil action. However, if settlement was made but the decision of the
Lupon was not enforced and the 60 day period of enforcement had lapsed, the plaintiff may
file a civil action in court for ENFORCEMENT OF BARANGAY DECISION as its cause of
action.
4. When a case is referred to the lupon, prescription of action is suspended. However the
duration of the said suspension only last for 60 days from the referral of the case to the
Lupon.
5. Settlement of the civil aspect does not compromise the criminal aspect. But the criminal case
maybe dismissed upon the motion of the defendant because of lack of evidence since the
complainant desisted.
What is the effect if these condition precedents were not complied with?
A MOTION TO DISMISS can be filed on the ground of LACK of a CAUSE of ACTION. The case is
premature and not yet ripe for judicial adjudication!
What is the primordial consideration before one may file a civil action?
One must have a CAUSE of ACTION! (Section 1, Rule 1)
CAUSE OF ACTION
Rule on Causes of Action:
A plaintiff may state as many causes of actions in the alternative or otherwise, but such actions may also be
joined.
1 COA= 1 civil action
2 or more COA= 1 civil action
Concept of a Cause of Action
The act or omission by which a party violates the rights of another
ELEMENTS: (Ma-ao Sugar Central v. Barrios, 76 P 666)
1. Plaintiff has a right
2. Defendant has the obligation to respect the right
3. Defendant violates the right
4. The violation of the right causes damages to the plaintiff
is
either
to
protect
right
or
prevent
or
redress
wrong.
A misjoined cause of action may, on motion of a party or on the initiative of the court be severed and
proceeded with separately.
Illustration:
BAR 2002 [jurisdiction; cause of action]
Question: P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on an overdue
promissory note, (2) P80,000.00 on the purchase price of a computer, (3) P150,000.00 for damages to his car
and (4) P100,000.00 for attorneys fees and litigation expenses. Can A move to dismiss the case on the
ground that the court has no jurisdiction over the subject matter? Explain.
Answer: No, because the RTC-Manila has jurisdiction over the subject matter. P may sue A in one
complaint asserting as many causes of action as he may have and since all the claims are
principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.
[Rule 2, sec. 5(d)]. The aggregate amount claimed is P450,000.00, exclusive of the amount of
P100,000.00 for attorneys fees and expenses of litigation. Hence, the RTC-Manila has jurisdiction.
(Totality Principle)
BAR 1999 (Splitting Cause if Action)
a)
What is the rule against splitting a cause of action and its effect on the respective rights of the
parties for failure to comply with the same?
b)
A purchased a lot from B for Pl,500,000.00. He gave a down payment of P500,000, signed a
promissory note payable thirty days after date, and as a security for the settlement of the obligation,
mortgaged the same lot to B. When the note fell due and A failed to pay, B commenced suit to recover from
A the balance of P1,000,000.00. After securing a favorable judgment on his claim, B brought another action
against A before the same court to foreclose the mortgage. A now files a motion to dismiss the second action
on the ground of bar by prior judgment. Rule on the motion.
Suggested Answer:
a.
The rule against splitting a cause of action and its effect are that if two or more suits are instituted
on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one
is available as a ground for the dismissal of the others. (Sec. 4, Rule 2)
b.
The motion to dismiss should be granted. When B commenced suit to collect on the promissory
note, he waived his right to foreclose the mortgage. B splitted his cause of action.
10
decide a case.
JURISDICTION OF COURTS
SUPREME COURT
Civil Cases
I.
II.
Concurrent jurisdiction
1.
2.
III.
3.
4.
1.
2.
3.
4.
11
Appellate jurisdiction
By way of petition for review on certiorari against CA, Sandiganbayan,
RTC on pure questions of law and CTA in its decisions rendered en
banc.
In cases involving the constitutionality or validity of a law or treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance or regulation, legality of
a tax, impost, assessment, toll or penalty, jurisdiction of a lower
court; and
All cases in which the jurisdiction of any court is in issue;
All cases in which an error or question of law is involved
CIVIL CASES
COURT OF APPEALS
I.
II.
1.
2.
3.
III.
1.
2.
3.
4.
Sandiganbayan
12
RTC
Civil Cases
Exclusive original jurisdiction
1. The action is incapable of pecuniary estimation
2. Title to, possession of, or interest in real property with assessed value exceeding P20,000
outside Metro Manila, or exceeds P50,000 in Metro Manila;
3. If the amount involved exceeds P300,000 outside MM or exceeds P400,000 in MM in the
following cases:
A. Damages (apply totality rule).
B. Collection of sum of money, exclusive of damages claimed and interests.
C. Admiralty and maritime cases
D. Matters of Probate
E. Other actions involving property
4. Cases not falling within the jurisdiction of any court, tribunal, person or body exercising
judicial or quasi-judicial functions. All actions involving the contract of marriage and family
relations.
5. To hear and decide intra-corporate controversies:
A. Cases involving devises or schemes employed by or any acts, of the board of
directors, business associates, its officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the interest of the public and/or of
the stockholders, partners, members of associations or organizations registered with
the SEC.
B. Controversies arising out of intra-corporate or partnership relations, between and
among stockholders, members or associates; between any or all of them and the
corporation, partnership or association of which they are stockholders, members or
associates, respectively; and between such corporation , partnership or association
and the state insofar as it concerns their individual franchise or right to exist as such
entity
C. Controversies in the election or appointments of directors, trustees, officers or
managers of such corporations, partnerships or associations
D. Petitions of corporations, partnerships or associations to be declared in the state of
suspension of payments in cases where the corporation, partnership or association
possesses sufficient property to cover all its debts but foresees the impossibility of
meeting them when they respectively fall due or in cases where the corporation,
partnership or association has no sufficient assets to cover its liabilities, but is under
the management of a Rehabilitation Receiver or Management Committee.
RTC
Concurrent jurisdiction
1. With the Supreme Court
in actions affecting ambassadors, other public ministers and consuls
2. With the SC and CA
in petitions for certiorari, prohibition and mandamus against lower courts and
bodies in petitions for quo warranto, habeas corpus, and writ of continuing
mandamus on environmental cases
3. With the SC, CA and Sandiganbayan
in petitions for writs of habeas data and amparo
4. With Insurance Commissioner claims not exceeding P100, 000.
Appellate jurisdiction
13
Over cases decided by lower courts in their respective territorial jurisdictions except
decisions of lower courts in the exercise of delegated jurisdiction.
Special jurisdiction
SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land reform cases not falling within the
jurisdiction of any quasi-judicial body and other special cases in the interest of justice.
MTC,
MeTC
MCTC
Civil actions
Exclusive original jurisdiction
1. If the amount involved does not exceed P300,000 outside MM or does not exceed
P400,000 in MM in the following cases:
A. Actions involving personal property
B. Probate Proceeding based on gross value of the estate
C. Admiralty and maritime cases
D. Demand for collection of money, exclusive of damages claimed and interests.
E. damages
2. Actions involving title to, or possession of, real property, or any interest therein where
the assessed value of the property or interest therein does not exceed P20,000 outside
MM or does not exceed P50,000 in MM;
3. Inclusion and exclusion of voters
4. Those governed by the Rules on Summary Procedure:
A. Forcible entry and unlawful detainer
B. Other civil cases, except probate proceeding, where the total amount of the
plaintiffs claim does not exceed P200, 000 in MM, exclusive of interests and
costs.
Special jurisdiction
Over petition for writ of habeas corpus or application for bail in criminal cases in
the absence of all RTC judges in the province or city.
Delegated jurisdiction
To hear and decide cadastral and land registration cases where there is no
controversy over the land or in case of contested lands, the value does not
exceed P100, 000.
Cases
covered in
the
LUPON
14
The Lupon of each barangay shall have the authority to bring together the parties actually
residing in the same municipality or city for amicable settlement of all disputes except:
1. Where one party is the government or any subdivision or instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000;
4. Offenses where there is no private offended party;
5. Where the dispute involves real properties located in different cities or municipalities
unless the parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon;
6. Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties
thereto agree to submit their differences to amicable settlement by an appropriate lupon;
7. Such other classes of disputes which the President may determine in the interest of
justice or upon the recommendation of the Secretary of Justice;
8. Any complaint by or against corporations, partnerships, or juridical entities;
9. Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specifically:
A. A criminal case where the accused is under police custody or detention;
B.
10.
11.
12.
1.
2.
3.
4.
5.
JURISDICTION
Jurisdiction is the power of the court to
hear, try and decide cases.
Jurisdiction is a matter of substantive law.
Jurisdiction establishes a relation between
the court and the subject matter.
Jurisdiction is fixed by law.
Jurisdiction is a ground for motu propio
dismissal of the action.
1.
2.
3.
4.
5.
VENUE
Venue is the place or the geographical area
where an action is to be filed and tried.
Venue establishes relation between plaintiff
and defendant; petitioner and respondent.
It is a matter of procedural law.
It is conferred to the parties.
Not a ground for motu propio dismissal of the
case.
Illustrations
BAR 2002 [jurisdictional amount; separate cause of action]
Question: P sued A and B in one complaint in the RTC-Manila, the cause of action against A being on an
overdue promissory note for P300,000.00 and that against B being on an alleged balance of P300,000.00 on
the purchase price of goods sold on credit. Does the RTC-Manila have jurisdiction over the case? Explain.
(3%)
Suggested answer: No, the RTC-Manila has no jurisdiction over the case. A and B could not be
joined as defendants in one complaint because the right to relief against both defendants do not
arise out of the same transaction or series of transactions and there is no common question of law
or fact common to both. (Rule 3, sec. 6). Hence, separate complaints will have to be filed and they
would fall under the jurisdiction of the Metropolitan Trial Court. [Flores v. Mallare-Philipps, 144
SCRA 377 (1986)].
BAR 2000 [incapable of pecuniary estimation]
Question: A files an action in the Municipal Trial Court against B, the natural son of As father, for the
partition of a parcel of land located in Taytay, Rizal with an assessed value of P20,000.00. B moves to dismiss
the action on the ground that the case should have been brought in the RTC because the action is one that is
not capable of pecuniary estimation as it involves primarily a determination of hereditary rights and not
merely the bare right to real property. Resolve the motion. (2%)
Suggested Answer: The motion should be granted. The action for partition depends on a
determination of the hereditary rights of A and B, which is not capable of pecuniary estimation.
Hence, even though the assessed value of the land is P20,000.00, the Municipal Trial Court has no
jurisdiction. (Russell v. Vestil, 304 SCRA 738).
VENUE [Rule 4]
Venue is the place or the geographical area where an action is to be filed and tried.
Can venue be stipulated upon by the parties?
YES! As long as it is
(1) put in mandatory terms,
15
16
6.
17
1.
2.
3.
Natural person
Juridical person
Entities authorized by law, such as:
> Estate of a deceased person
> political party incorporated under Act 1459
> registered labor union
18
Represented by the mayor, the people of Baguio filed a class suit against Wakas Group of
Companies for their ailment that they obtained due to the smoke coming from the company.
Wakas Group of Companies filed a motion to dismiss on the ground of lack of cause of action.
Resolve the motion.
The motion should be denied. Under the law, the primordial consideration for a class suit is
the presence of common interest among all the members. In this case there was no common
interest because the ailment that one resident obtained is not the interest of the other residents.
III.
The residence of Santiago filed a Class suit against Petron for the destruction of marine life due to
an oil spill from their oil pipes. Petron filed a motion to dismiss. Resolve the motion.
The motion should be granted. Under the law, for a class suit to prosper there must be a
common interest among the members. In this case there was a common interest among
the members because there action was based on the destruction of the environment.
However it would be different if the resident based their claim on the damage to their
own and separate fish pens.
Kinds of Parties
I.
Indispensable Parties
Those without whom no final determination can be had of an action.
Those with such interest in the controversy that a final decree would necessarily affect their
rights so that the court cannot proceed without their presence.
II.
19
Necessary Parties
Those which are not indispensable but ought to be parties if complete relief is to be accorded
as to those already parties or for a complete determination or settlement of the claim subject of
the action.
III.
Pro-forma Parties
Those which are required to be joined as co-parties in suits by or against another party as may
be provided by the applicable substantive law or procedural rules.
They are required to file an answer in cases where their personality is being attacked. Such as
when they are alleged to be in cahoots with the opposing party.
IV.
Quasi- Parties
Those which in whose behalf a class or representative suit is brought.
V.
Indigent Party
A litigant who has no money or property sufficient and available for food, shelter and basic
necessities for himself and his family.
Supported by documents such as ITR, certificates from the assessors office
Can a person claim that he is an indigent party by mere affidavits and certificates?
No! There must be judicial intervention. One can only qualify as an indigent party if the
court upon an ex-parte application and hearing, is satisfied that the party has no money or
property sufficient and available for food, shelter and basic necessities for himself and his
family.
What are the fees an indigent party is exempt to pay?
1. Docket and other lawful fees (sheriff fee not included)
2. Transcript of stenographic notes which the court may order to be furnished him.
Note:
As a rule these fees becomes a lien on any judgment favorable to the indigent.
Exception: Unless the court provides otherwise.
Can an adverse party question the qualification of a party as an indigent litigant?
YES! A party may contest the grant of such authority (WHEN?) at any time before
judgment is rendered by the trial court.
Note:
Questioning the qualification of a party as an indigent litigant is crucial especially if
you are the counsel for the opposing party.
FIRST, an indigent party is exempt from paying filing fees/docket fees. Ergo, if you
had proven that he had sufficient income to pay the filing fees (not an indigent
litigant), the court may require him to pay the same.
SECOND, if he does not pay the assessed filing fees, you can file a motion to dismiss
because payment of docket/ filing fee is jurisdictional! When filing fees are not paid
the case is dismissible on the ground of lack of jurisdiction over the subject matter.
20
21
3.
Actions to recover for an injury to person or property by reason of tort or delict committed by the deceased.
Note:
Where a right is transferred before the institution of the action, the suit should be brought in the
name of the assignee; where the transfer is made pendente lite, the assignee should be substituted
for the original plaintiff.
The failure to effect such formal substitution however will not prevent the court from rendering
judgment in favor of the assignee. If judgment was rendered in favor of the assignor because
substitution was not duly effected, the assignor shall hold the proceeds of the judgment in trust for
the assignee.
3.
4.
Illustration:
BAR 2000 [death of a party]
Question: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against him which
was docketed as Civil Case No. 123. A retainership agreement was executed between PJ and Atty. ST
whereby PJ promised to pay Atty. ST a retainer sum of P24, 000.00 a year and to transfer the ownership of a
parcel of land to Atty. ST after presentation of PJs evidence. PJ did not comply with his undertaking. Atty.
ST filed a case against PJ which was docketed as Civil Case No. 456. During the trial of Civil Case No. 456,
PJ died.
Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in Civil Case No. 456?
Explain. (2%)
Will your answer be the same with respect to the real property being claimed by Atty. ST in Civil
Case No. 456? Explain (2%)
Suggested Answer: No. Under Sec. 20, Rule 3, 1997 Rules of Civil Procedure, when the action is for recovery
of money arising from contract, express or implied, and the defendant dies before entry of final judgment in
the court in which the action is pending at the time of such death, it shall not be dismissed but shall instead
be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff shall be
enforced in the manner especially provided in the Rules for prosecuting claims against the estate of a
deceased person.
Yes, my answer is the same. An action to recover real property in any event survives the death of the
defendant. (Sec. 1, Rule 87, Rules of Court). However, a favorable judgment may be enforced in accordance
with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against the executor or administrator or successor in
interest of the deceased.
PLEADINGS [Rules 6, 7, 8, 9]
22
General Principles:
1. The Counsel of the adverse party must be furnished with a copy of all pleadings, except those initiatory
pleadings (complaint) because it is the court that will serve them together with the summons.
2. Service of pleading to counsel is service to client, but service to client is not service to counsel, except if the
counsel was given another copy aside from that given to the client.
What is a Pleading?
Written statements of the respective claims and defenses of the parties submitted to the court for
appropriate judgment.
Includes all papers filed excluding evidentiary matters.
It aims to define the issues and foundation of proof to be submitted during the trial, and to apprise the court
of the rival claims of the parties.
Kinds
1. Complaint- filed by the plaintiff
2. Answer- done by the defendant
3. Counterclaim- availed by the defendant; usually attached to the answer.
4. Cross claim- availed by a defendant against a co-defendant
5. Reply made by the plaintiff.
Parts of a Pleading
I.
Caption- it contains
Name of the court
Title of the action
Docket number if assigned
Original Complaint
It must include the names of all the parties.
Subsequent Pleadings
Suffice that the name of the first party on each side be stated with an appropriate indication when
there are other parties.
II.
Text or Body
The body of the pleading sets forth its designation, the allegations of the partys claims or defenses,
the relief prayed for, and the date of the pleading.
Paragraphs
It should be numbered for easy reference.
The allegations in the body of a pleading shall be divided into paragraphs so numbered
as to be readily identified, each of which shall contain a statement of a single set of
circumstances so far as that can be done with convenience.
Headings of two or more causes of action
When two or more causes of action are joined the statement of the first shall be
prefaced by the words first cause of action of the second, second cause of action,
and so on for others.
When one or more paragraphs in the answer are addressed to one of several causes of
action in the complaint, they shall be prefaced by the words, answer to the first cause
of action or answer to the second cause of action and so on; and when one or more
paragraphs of the answer are addressed to several causes of action, they shall be
prefaced by words to that effect.
23
Relief/ Prayer
The pleading shall specify the relief sought but it may add a general prayer for such
further or other relief as may deemed just or equitable.
NOTE: the prayer in a pleading does not constitute an essential part of the allegations
determinative of the jurisdiction of a court.
Date
Every pleading shall be dated.
III.
IV.
24
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
25
It is defective certification and is a valid cause for dismissal. A certification by counsel and not the
principal party himself is no certification at all. Except in the case of a corporation where the
counsel is the in-house counsel and at the same time authorized by the corporation to do the same.
Contents of a Certification of non-forum shopping: sworn statement certifying the following matters:
1. The party has not commenced or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and to the best of his knowledge no such other action or claim is pending.
2. If there is such other pending action or claim, a complete statement of the present status thereof.
3. If he should therefore learn that the same or similar action or claim has been filed or is pending, he
shall report the fact within 5 days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
What is the effect of non-compliance with the requirements of certification of non- forum shopping?
Non- compliance with the foregoing requirements shall not be curable by mere amendment of the
compliant or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and hearing.
REMEDY: during the hearing if the dismissal is with prejudice. Convince the judge by presenting
your reason for non-compliance so that if your reason is admissible, the judge may order belated
submission (Section 5, Rule 7).
Possible violations on Certification of Non Forum-shopping [As per Dean Riano]
1. Non- compliance with the undertaking
Dismissal without prejudice
2. False certification
Indirect contempt, administrative and criminal sanction
3. Willful and deliberate forum shopping
Ground for summary dismissal with prejudice without motion and hearing; it has
administrative but no criminal sanctions.
What are the remedies if the case is dismissed on the ground of noncompliance with the certification of
non-forum shopping? (Section 1, Rule 41)
1. Dismissal without prejudice- remedy is certiorari via rule 65.
2. Dismissal with prejudice- remedy is appeal, since the order is final and disposes of the case.
What if it is a CORPORATION that is executing verification or certification of non forum-shopping?
It may be executed by properly authorized persons.
This person may be the lawyer of a corporation. As long as he is duly authorized by the corporation and has
personal knowledge of the facts required to be disclosed in the certification against forum shopping, the
certification maybe signed by the authorized lawyer.
What is the manner of making allegations in the pleading?
General Principle:
Every pleading shall contain in a mathematical and a logical form, a plain, concise and direct
statement of the ultimate facts on which the party relies for his claim and defense, as the case may
be, containing the statement of mere evidentiary facts.
Ultimate facts
They are the important and substantial facts which either directly form the basis of the
plaintiffs primary right and duty or directly make up the wrongful acts or omissions of the
defendant.
Evidentiary facts
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They are those which are necessary to prove the ultimate fact or which furnish evidence of
the existence of some other facts.
What is meant by filing of pleading? What is meant by service of pleadings?
FILING
SERVICE
The act of presenting the pleading or other The act of providing a party with a copy of the pleading
paper to the clerk of court.
or paper concerned.
What is the manner of filing?
Under the law it may be done through personal service or by registered mail. The filing of pleadings,
appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the
original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by
registered mail (Registry Service). In the first case, the clerk of court shall endorse on the pleading the date
and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or
payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the
record of the case (Sec. 3, Rule 13).
What are the modes of service of pleadings?
Under the law there are two modes of service of pleadings, judgments, motions, notices, orders, judgments
and other papers:
a) Personally, or
b) By mail.
However, if personal service and service by mail cannot be made, service shall be done by substituted
service. Substituted service is complete at the time of delivery of the copy to the clerk of court.
What is meant by personal service?
It is the preferred mode of service.
If another mode of service is used other than personal service, the service must be accompanied by a written
explanation why the service of filing was not done personally. Exempt from this explanation are papers
emanating from the court.
A violation of this explanation requirement may be a cause for the paper to be considered as not having
been filed (Sec. 11, Rule 13).
Personal service is made by:
a. Delivering a copy of the papers served personally to the party or his counsel, or
b. By leaving the papers in his office with his clerk or a person having charge thereof, or
c. If no person is found in the office, or his office is not known or he has no office, then by leaving a
copy of the papers at the partys or counsels residence, if known, with a person of sufficient age
and discretion residing therein between eight in the morning and six in the evening (Sec. 6, Rule
13).
What is meant by service by registered mail?
Registered mail is the preferred service by mail.
Service by ordinary mail may be done only if no registry service is available in the locality of either the
sender or the addressee.
Can there be substituted service of pleadings? When?
Availed of only when there is failure to effect service personally or by mail. This failure occurs when the
office and residence of the party or counsel is unknown.
How judgments, final orders or resolutions are serve?
Final orders or judgments shall be served either personally or by registered mail.
When a party summoned by publication has failed to appear in the action, final orders or judgments against
him shall be served upon him also by publication at the expense of the prevailing party.
When is service deemed complete?
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Personal service
- Upon actual receipt by the addressee, or after five (5) days from the
date he received the first notice of the postmaster, whichever is earlier.
- Upon the expiration of ten (10) days after mailing, unless the court
otherwise provides.
Substituted service
What are the proofs of filing? What are the Proofs of service?
Proof of Filing
By its existence in the record.
If it is not in the record a) If filed personally:
By the written or stamped
acknowledgement of its filing by the clerk of
court on a copy of the same; or
b) If filed by registered mail:
By the registry receipt and the
affidavit of the person who did the
mailing with a full statement of:
i. the date and place of depositing
the mail in the post office in a
sealed envelope assessed to the
court;
ii. with postage fully paid; and
iii. with the instructions to the
postmaster to return the mail to the
sender after 10 days if undelivered
Proofs of Service
a) Personal service:
i. The written admission of the party
served; or
ii. The official return of the server; or
iii. The affidavit of the party serving,
containing full information of the date, place
and manner of service.
b) Registered mail By the affidavit of the mailer showing
compliance with Sec. 7, Rule 13 and the
registry receipt issued by the mailing office.
c) Proof of service of ordinary mail
By affidavit of the mailer showing compliance
with Sec. 7, Rule 13.
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3.
If it has no resident agent, agent or officer, the service of summons shall be made on the
proper government office which will then forward it by registered mail.
Within 10 days to the corporations office.
The answer must be filed within 30 days from the receipt of the summons by home
office.
4.
5.
7.
8.
9.
Reply
Within 10 days from the service of the pleading responded to.
COMPLAINT
Side Comment: The concept of remedial law is based on daily occurrences.
One night, Santiago Wakas was surreptitiously tiptoeing to their conjugal room. He was shocked when all
the lights were turned on. The next thing he heard was her wife shouting nanggaling ka nanaman kay
Kristina ano? [Complaint] Cornered, Santiago responded, oo nanggaling ako kay Kristina (admission),
pero iyon ay para sinigilin ang pinautang mo sa kanya [affirmative defense]. Masyado ka namang mahigpit,
eh noong last week nakita kitang kasama ang dating boyfriend mo!!!!!! [Counterclaim]
What is a Complaint?
Initiatory pleading, thus there must be a verification, certification of non-forum shopping and payment of
docket fees.
The pleading alleging the plaintiffs cause or causes of action, stating therein the names and residences of
the plaintiff and defendant.
The moment the plaintiff filed his complaint he submits to the jurisdiction of the court.
Manner of Making Allegations in the Complaint
I.
Condition Precedent
When a claim is subject to condition precedent, the compliance of the same must be
alleged in the pleading.
II.
How fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official
documents or acts be alleged.
1. Fraud
Must be stated with particularity.
It is not enough for the complaint to allege that he was defrauded by the defendant. The
complaint must state with particularity the fraudulent acts of the adverse party. These
29
2.
3.
4.
5.
particulars would necessarily include the time, place, and specific acts of fraud
committed by him.
Malice, intent, knowledge or other conditions of the mind of a person
Maybe averred generally.
Judgments
It is sufficient to aver the judgment or decision without setting forth matter showing
jurisdiction to render it.
Official documents or acts
It is sufficient to aver that the document was issued or the act done in compliance with
law.
Capacity
Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or
be sued in representative capacity or the legal existence of an organized association of
persons that is made a party must be averred.
How to contest capacity to sue or be sued?
Under the law, any party desiring to raise an issue as to the legal existence of any party
or the capacity of any party to sue or be sued in a representative capacity, shall do so by
specific denial, which shall include supporting particulars as are peculiarly within
the pleaders knowledge.
By Registered Mail
The date of mailing of motions, pleadings, or any other papers or payments or deposits, as
shown by the post office stamp on the envelope or the registry receipt, shall be considered as
the date of their filing, payment or deposit in court. The envelope shall be attached to the
record of the case.
Question: Are ordinary mails (private couriers) allowed?
Answer: Yes, if there is no registered mail (Philippine Post Office) in the area, but for
purposes of prescription, the date of actual receipt by the court of the pleadings is
the date of filing.
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The Supreme Court has consistently held that payment of docket fee within the prescribed period
is mandatory for the perfection of an appeal. Without such payment, the appellate court does not
acquire jurisdiction over the subject matter of the action and the decision sought to be appealed
from becomes final and executory.
However delay in the payment of the docket fees confers the court a discretionary, not a
mandatory power to dismiss an appeal.
ERGO, in connection with the payment of docket fees, the court requires that all complaints,
petitions answers and similar pleadings must specify the amount of damages being prayed for
both in the body of the pleading and in prayer therein and said damages shall be considered in the
assessment of the filing fees; otherwise such pleading shall not be accepted for filing or shall be
expunged from the record.
Illustration:
Bar: the plaintiff was abroad, his counsel filed the complaint. The defendant moved to dismiss on the
ground that the court has no jurisdiction over the complainant because he is not in the Philippines.
Defendant is wrong: jurisdiction is not acquired through his personal presence in court to file the
complaint. Jurisdiction on his person is acquired by the filing of the complaint in his name and
under his authority. Jurisdiction was acquired by virtue of the complaint filed in court.
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2.
3.
4.
5.
6.
5.
6.
REQUISITES:
1. Identity of parties
2. Identity of issues
3. identity of relief sought
4. Identity of particulars
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33
It is an action which names a person as defendant but its object is to subject that person's interest in a
property to a corresponding lien or obligation or an action pertaining to the status of a person. The
decision which is called judgment quasi-in-rem is binding only between the parties.
There is a specific individual who is interested in a property but its actually the property which is the
focal point of the suit.
Example
1. Actions for partition of co-owned real property
2. Actions for accounting of property
3. Actions for foreclosure of mortgage
How can the court acquire jurisdiction over the res (subject matter of the complaint)?
1. By the seizure of the property under legal process, whereby it is brought into actual custody of the law.
2. As a result of the institution of legal proceedings in which the power of the court is recognized and
made effective.
MODES OF SERVICE OF SUMMONS
I.
Personal Service of Summons
Priority mode. It can be made anywhere at any time
It is made by handling the copies of the summons to the defendant in person OR if he refuses
to receive and sign for it, by tendering it to him.
Must be done in several attempts- at least 3 times and for at least two different days.
Service to the wife or child of sufficient age is not personal service.
II.
How?
1. By leaving copies of the summons at the defendants dwelling house or residence
with some person of suitable age and discretion, then residing therein.
2. By leaving copies at defendants office or regular place of business with some
competent person incharge thereof.
IV.
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1.
2.
3.
35
NOTE:
1. No summons by publication
2. No substituted service because he has no place of business or residence in the Philippines.
Exception: Substituted service may be effected through:
1. The spouse of the non- resident defendant
2. The spouse must be residing in the Philippines
3. The spouse is appointed as attorney-in-fact in a previous case involving the nonresident defendant. (Asiavest vs CA, quoting Gemperle vs. Shcenker, Sept. 25, 1998).
Remedy: If the action is in personam and the non-resident defendant has properties in the Philippines, file a
motion for preliminary attachment, so that the personam action will be converted into quasi in rem. In that
case you can effect summons by publication.
Non-resident defendant in an Action in Rem/ Quasi-in-rem
Extraterritorial service of summons
It is always by leave of court through:
1. Personal service outside the Philippines. OR
2. Publication and a copy of the summons and order of the court shall be sent to the last address of the
defendant. OR
3. Any manner the court may deem sufficient.
Service of Summons upon Entity without Juridical Personality
Service may be effected upon all the defendants by serving upon any one of them, OR
Upon the person in charge of the office or place of business maintained is such name.
However, such service shall not bind individually any person whose connection with the entity has, upon
due notice, been severed before the action was brought.
Service of Summons upon Domestic Private Juridical Entity
Service maybe made on any of the following: (the enumeration is exclusive)
1. President
2. Managing partner
3. General manger
4. Corporate secretary
5. Treasurer
6. In-house counsel
Service of Summons upon Foreign Private Juridical Entity
When the defendant is a foreign private juridical entity which has transacted business in the Philippines,
service may be made in any of the following:
1. Resident agent designated in accordance with law for that purpose
2. In the absence of such agent, on *the government officials designated by law to that effect,
3. On any of its officers or agents within the Philippines.
*Government Officials Designated by Law
1. If the corporation is engage in banking, saving, and loan or trust- Superintendent
of Banks.
2. Insurance Corporations- Insurance Commissioner
3. Other Corporations- Secretary of Commerce or SEC
Service upon Public Corporations
Republic of the Philippines- service may be effected on the Solicitor general.
Province, city, municipality or like public corporation- service may be effected on its executive head, or on
such other officer or officers as the law or the court may direct.
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Illustrations:
Accion in Rem, yet a Personal Action
Guillermo L., a Mexican resident came to the Philippines just to check whether Mount Mayon has a perfect
cone, and to check whether the Chocolate hills of Bohol are really chocolates. He stayed in the Manila hotel.
In the front desk was Maria. When Guillermo saw her, he was inlove with her from head to heels and heels
to head [translation: sa pagmamahal niya pabali-balintuwang na siya]. He went to Maria and directly confessed
Hola! Senora, yo te amo con todo mi Corazon [Hi! Miss, I love you with all my heart]. Maria replied, no senor,
yo ya estoy comprometido a Santiago Wakas..y yo estoy locamente elogiar a Francisco [No! Sir, it cannot be, I am
already engaged to Santiago Wakas..and I am madly inlove to Francisco]. Brokenhearted, Guillermo
went away. When he returned to the hotel he was holding bunch of explosives with a remote control and a
rocket launcher and shouted hey! Maria, marry me or I will blow your house and your parents. Shortcut
lingo, they were married. They stayed in the Manila Hotel, but after one month Guillermo returned to
Mexico. Maria was very happy so she went to the rooftop of the hotel and shouted Dios mio, muchas gracias
libertad!!!!! [My God, thank you so much. Liberty!!!!] She filed an action in court for declaration of nullity of
marriage.
1. What is the nature of the action?
2. What kind of summons to be employed?
3. Where will you file the case?
4. What court has jurisdiction over the case?
Answers:
1. Under the law the action is an accion in rem because it involves the personal status of the plaintiff.
37
2.
3.
4.
Under the law, the summons that would be employed is extraterritorial service of summons because
the defendant is a non-resident defendant.
Under the law, for purposes of jurisdiction, the case must be filed in the RTC because annulment of
marriage is incapable of pecuniary estimation, which falls under the jurisdiction of the RTC.
Under the law, for purposes of venue, the case must be filed in the residence of the plaintiff because it is
a personal action. It does not involve a real property or ownership, possession, or interest thereof. It can
also be filed in the residence of the defendant. However in this case the plaintiff cannot have the option
of defendants residence because the defendant is a non-resident. .
MOTIONS
[Rule 15]
General Principles:
1. Under the law any defense or objections not raised in the motion is barred [Doctrine of Omnibus Motion
Rule].
Except:
d. Lack of jurisdiction over the subject matter.
e. Litis pendentia.
f. Res judicata
g. Prescription/ violation of the statute of limitations
h. Where evidence that would constitute a ground for dismissal is discovered during the trial
but there must be leave of court.
2. Every written motion shall be set for hearing by the applicant (Section 4, Rule 15).
Exception: motions which the court may act upon without prejudicing the rights of the adverse
party.
3. Service of motion comes first before filing of motion. Because before you will file a motion there must be a
proof of service.
4. In case of written motions, the movant should furnish a copy of the motion to the other partys counsel.
What is a Motion?
Under the law a motion is an application for relief other than by a pleading.
38
39
Is proof of service of the motion necessary for the court to hear the same? (Section 6, Rule 15)
Under the law, no written motion set for hearing shall be acted upon by the court without proof of service
thereof.
Note: Copy furnished is not sufficient, there must be proof that the other party receive the notice of
hearing for the motion.
Note:
Under the law a motion that did not comply with Sections 4, 5, 6 of Rule 15 is a mere scrap of paper. It
should not be accepted for filing and if filed is not entitled to judicial cognizance and does not affect any
reglementary period involved for the filing of the requisite pleading.
When should be the motion day? (Section 7, Rule 15)
Under the law all motions shall be scheduled for hearing on Friday afternoon, or if Friday is a nonworking day, in the afternoon of the next working day.
Friday afternoon as a motion day is mandatory.
Exception: Those motions requiring immediate action.
What is required if a party files a motion for leave?
Under the law, a motion for leave to file a pleading or motion shall be accompanied by the pleading or
motion to be admitted.
Note: Under the law, non-compliance with the submission of motion or pleading sought to be admitted
will render the denial of the applied motion.
40
1.
2.
3.
What is the effect of filing a motion for BoP on the period to file a responsive pleading?
Under the law, whether or not the motion for BoP is granted, the period to file the responsive pleading is
stayed or interrupted.
What if the BoP was denied?
Movant should file an answer.
After the notice of denial of his motion, the movant may file his responsive pleading within the period to
which he is entitled to at the time the motion for bill of particulars is filed.
Note:
If the movant has less than 5 days to file his responsive pleading upon the service of the BOP or after
notice of the denial of his motion, he nevertheless has 5 days within which to file his responsive
pleading (section 5, Rule 12). [Side comment: in the quiz -check the dates- baka may holiday]
Illustration:
June1- receipt of summons (up to July 16 to file answer)
June 14- filed a BoP
June 23- motion for BoP denied
June 27- receipt of order denying BoP
July 2- last day to file answer (5 days per section 5, Rule 16)
What if the BOP was granted?
Under the law, if a motion for BoP is granted, the court shall order the pleader to submit a bill of particulars
to the pleading to which the motion is directed.
The compliance shall be effected within 10 days from notice, or order within the period fixed by the court
What if the other party did not comply with the courts order to file a BoP?
Under the law, non-compliance with the order to file a BoP has the following effects:
1. Striking out of the pleading.
2. The portions thereof to which the orders was directed; or
3. Make such order of amendment as it deems just.
Remedy: If the essential parts of the complaint were striken out, then you can file a motion to
dismiss on the ground of failure to state a cause of action.
Is it allowed that you file a Bill of Particulars, and then subsequently you file a motion to dismiss?
No, unless it is on the ground of lack of jurisdiction over the subject matter, res judicata, litis pendentia, and
prescription.
Rationale: the reason for filing a motion of Bill of particulars is for the respondent to intelligently prepare his
answer. Thus, it would be utmost stupidity to file a motion to dismiss when you are asking for the plaintiff
to clarify his complaint.
COMPUTATION OF TIME
Rule 22
Principles:
In computing any period of time prescribed or allowed by the Rules, or of the court, or by any applicable
statute:
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1.
The day of the act or event from which the designated period of time begins to run is to be
excluded.
2. The date of performance shall be included.
If the day of the period, as thus computed falls on a Saturday, a Sunday, or a legal holiday in the place
where the courts sits, the time shall not run until the next working day.
Cases where there was a Valid Interruption:
1. Should an act be done which effectively interrupts the running of the period, the allowable period after such
interruption shall start to run on the day after notice of the cessation of the cause thereof.
2. The day of the act that caused the interruption shall be excluded in the computation of the period.
Note:
Valid interruptions include force majeure, fortuitous events or calamities.
It also includes the filing of Motions for Bill of Particulars, motion to dismiss, etc
The question of the determination of when the event occurred and was terminated, and how the party
affected knows or be made aware of the period of such interruption, it is believed that the notice thereof can
be given by the court to the parties on a case to case basis.
MOTION TO DISMISS
Rule 16
General Principles:
1. It is a litigated motion.
2. If you file a motion to dismiss you waived your right to interpose a counterclaim. Therefore if you have a
counterclaim that is potent do not file a motion to dismiss, file an answer with counterclaim using your
ground for motion to dismiss as affirmative defenses.
3. Under the law, a motion to dismiss must be filed within the reglementary period for filing a responsive
pleading and before such responsive pleading is filed.
4. Motion to dismiss under Rule 16 is different from motion to dismiss in Rule 33.
5. Proceed to file a motion to dismiss if you have a ground, even if it does not bar the re-filing of the case.
Why? Because if the motion was granted and the case is dismiss, baka magdalawang isip ang
plaintiff na i-refile, considering the fact na magbabayad uli siya ng filing fees.eh kung 500,000
ang filing fee? (No refund of filing fees)
6. If the motion to dismiss was denied after hearing, and the case goes to trial, the evidence presented during
the hearing shall automatically be part of the evidence of the party presenting the same (Section 2, Rule 16).
MOTION to DISMISS
Grounded on preliminary objections.
May be filed by any defending party against whom a
claim is asserted in the action.
Should be filed within the time for but prior to the
filing of the answer of the defending party to the
pleading or claim against him.
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DEMURRER to EVIDENCE
Based on insufficiency of evidence.
May be filed only by the defendant against the
complaint of the plaintiff.
May be filed for the dismissal of the case only after
the plaintiff has completed the presentation of his
evidence.
legal resources @ www.sophialegis.weebly.com
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1.
2.
3.
Take Note!
The pendency of an administrative case between the parties does not generally constitute
litis pendentia in another civil or criminal case between them.
Res Judicata
Two Aspects:
1. Bar by prior judgment- same case; one case is decided on the merits.
2. Conclusiveness of Judgment- presupposes different causes of action but the judgment of the
court in the first case is conclusive in the second case.
Illustration:
Santiago Wakas filed a case against Guillermo Lawagan for recovery of ownership
over a parcel of land. The court decided in favor of Guillermo. Guillermo leased the
said land to Pedro. Santiago feeling that he was prejudiced filed damages against
Pedro, alleging that the latter used the land without his permission. Pedro filed a
motion to dismiss on the ground of Res judicata. Resolve the motion.
Answer: The motion should be granted. Under the law, the courts decision on the case
filed by Santiago against Guillermo is conclusive, and all cases arising from the same
subject matter must yield to it. The suit filed by Santiago against Pedro is anchored on
the same subject matter, thus barred by the conclusiveness of the judgment in the prior
case.
Elements of Res Judicata
1. Identity of parties and of the interest they represent.
2. Identity of rights asserted.
3. Identity of particulars
4. Judgment on the merits by a court that has jurisdiction over the case
Take note!
Under the law, res judicata as a ground for dismissal requires a previous final judgment in a
case prosecuted between the same parties involving the same subject matter and cause of
action.
Principle of res judicata applies to all cases and proceedings, including land registration and
cadastral proceedings.
Compromise Agreement- if there was a compromise agreement, the court in its decision will
adopt the compromise agreement and it becomes a judgment on the case. Such judgment is
final and executory on the day that it is rendered. The judgment by compromise constitutes res
judicata.
Prescription/ Statute of Limitations
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The claim on which the action is founded is unenforceable under the provisions of the statue of frauds
This ground is waivable.
Under the law, this ground for motion to dismiss may be filed even if the absence of a cause of
action does not appear on the face of the complaint. Such absence may be proved during the
hearing of the motion to dismiss on said ground.
Article 1403 of NCC- In the following cases an agreement hereafter made shall be unenforceable by
action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the
party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the
writing, or a secondary evidence of its contents:
1. An agreement that by its terms is not to be performed within a year from the making
thereof.
2. An agreement made in consideration of marriage, other than a mutual promise to marry.
3. An agreement for the sale of goods, chattels or things in action, at a price not less than five
hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the
evidences, or some of them, of such things in action, or pay at the time some part of the
purchase money; but when a sale is made by auction and entry is made by the auctioneer
in his sales book, at the time of the sale, of the amount and kind of property sold, terms of
sale, price, names of the purchasers and persons on whose account the sale is made, it is
sufficient memorandum.
4. An agreement for the leasing for a longer period than one year, or for the sale of real
property or of an interest therein.
5. A representation as to the credit of third person.
Take note!
If the foregoing transactions were not in writing, they are ratified by the failure to object to
the presentation of oral evidence to prove the same, or by the acceptance of benefits under
them.
Republic Act 8792- E-commerce Law [Corollary to enforceability]
Section 6. Legal Recognition of Electronic Data Messages- Information shall not be denied
validity or enforceability solely on the ground that it is in the form of electronic data
message purporting to give rise to such legal effect, or that it is merely incorporated by
reference in that electronic data message.
Section 7. Legal Recognition of Electronic documents- Electronic documents shall have the
legal effect, validity or enforceability as any other document or legal writing, and(a) Where the law requires a document to be in writing, that requirement is met
by an electronic document if the said electronic document maintains its
integrity and reliability and can be authenticated so as to be usable for
subsequent reference, in that
i. The electronic document has remained complete and unaltered, apart
from the addition of any endorsement and any authorized change, or
any change which arises in the normal course of communication,
storage and display; and
ii. The electronic document is reliable in the light of the purpose for
which it was generated and in the light of all relevant circumstances.
(b) Paragraph (a) applies whether the requirement therein is in the form of an
obligation or whether the law simply provides consequences for the document
not being presented or retained in its original form.
(c) Where the law requires that a document be presented or retained in its
original form, that requirement is met by an electronic document if-
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1.
2.
If the trial court had not categorically resolved the motion to dismiss.
When it is evident that the action is barred by res judicata. This can be justified by the liberal
construction rule. Res judicata is not waivable.
May the court dismiss an action upon a ground not alleged in a motion to dismiss?
NO! Except in cases where the courts can dismiss the case motu propio, such as in cases of lack of jurisdiction
and on the ground of prescription provided that the same is palpable on the face of the pleading.
Rationale: It prevents the plaintiff from arguing the point in question. The plaintiff should argue the issues
raise on the motion to dismiss.
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Question: What if a motion to dismiss was already filed by the defendant; can the plaintiff amend
his complaint as a matter of right?
Answer: Yes, a motion to dismiss is not a responsive pleading. Also, it is applicable even after
a motion to dismiss has been submitted for decision and even if a decision of dismissal of the
cases was ordered but it did not became final and executory. However, if a decision was
already made relative to the motion to dismiss the plaintiff should file a motion for
reconsideration, attached thereto is the amended pleading.
Is amendment of a complaint still possible even if an order for its dismissal was issued?
Yes! Amendment of the complaint may be allowed even if an order for its dismissal has been
issued as long as the motion to amend is filed before the dismissal order becomes final.
This contemplates amendment as a matter or right. The motion to dismiss that caused the
dismissal of the complaint is not a responsive pleading, thus even if the dismissal order was
issued but it was not final, the plaintiff can amend the complaint.
Can an amended answer be allowed even if the case was set for trial on the merits?
Yes! An amended answer may also be allowed even after the case has been set for trial on the
merits if the purpose of the amendment is to submit the real matter in dispute without intent
to delay the action.
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Answer? No! Because the court has no jurisdiction over the case. A court should not
act over a case which it has no jurisdiction. If the court grants the prayer of Santi it is
acting out its jurisdiction, hence violative of the Rules and principles of due process.
Note: The story would be different if the amendment made by Santiago is an
amendment as a matter of right. Because the court will not act by exercising its
discretion. Therefore it is not acting without its jurisdiction.
3.
4.
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2.
3.
4.
SUPPLEMENTAL PLEADINGS
Purpose: To set forth transactions, occurrences or events which have happened after filing of the complaint
or answer.
Cannot introduce a new cause of action.
Who may file a supplemental pleading?
Any party upon his motion and always by leave of court.
1.
2.
3.
Amended Pleading
Amended pleadings refer to the facts existing
at the time of the commencement of the
action.
An amended pleading results in the
withdrawal of the original pleading.
An amended pleading can be made as matter
of right, as when no responsive pleading was
not served.
Supplemental Pleading
Supplemental pleadings refer to facts arising after the
filing of the original pleading.
Supplemental pleading is merely in addition to but does
not result in the withdrawal of the original pleading.
Supplemental pleadings are always with leave of court.
[motion by leave of court to file supplemental
pleading]
If the defendant wants to file answer to the supplemental complaint- Answer to the supplemental
Complaint. It must be filed within 10 days from the issue of the order admitting the motion for
supplemental pleading.
EFFECTS OF AN AMENDED PLEADING
1. The amended pleading supersedes the original pleading which is deemed withdrawn and no longer
constitutes part of the records.
Any defense or allegation not included in the amended pleading is deemed waived.
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2.
Filing of the amended pleading does not retroact to the date of the filing of the original, hence the statute of
limitations runs until the filing of the amendment.
It is the actual filing in court that controls, and not the date of the formal admission of the
amended pleading.
Exception: But an amendment which merely supplements and amplifies facts as originally
alleged in the complaint relates back to the date of the commencement of the action and is not
barred by the statute of limitations which expired after the service of the original complaint.
3.
Where the original complaint states a cause of action but does it imperfectly and afterwards an amended
complaint is filed correcting the defect, the plea of prescription will relate to the time of the filing of the
original compliant. However, such rule would not apply to the party who was impleaded for the first time
in the amended complaint which was filed after the period of prescription had already lapsed, hence the
amended complaint must be dismissed as to such party who was thus belatedly included in the action.
4.
The superseded pleading is not totally expunge because reference thereby with regards to the effect of
amendments, that is:
a. Admissions in the superseded pleading can still be received in evidence against the pleader.
b.
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finger si Santiago kay Bombay. Naasar si Bombay kaya ni-refile un kaso. Is the two
dismissal rule applicable?
Answer: No! Because there are two separate cause of action. The two dismissal
rule will apply if the action which was dismissed twice proceeds from the same
cause of action and it was filed in a court of competent jurisdiction. In this case
the first and second loan of Santiago constitutes two separate causes of action.
When is the motion to dismiss by the plaintiff effected?
After the defendant filed his answer
Note:
This is a non-litigated motion because even if there is a counterclaim, the rules explicitly provide
that the dismissal shall be limited to the dismissal of the complaint and not the counterclaim.
Dismissal is without prejudice except if the order of dismissal so provides.
When shall be the motion to dismiss effected by the plaintiff be effective?
1. Upon approval of the court of the motion and
2. Upon such terms and conditions as the court deems proper.
What is the effect where the plaintiff moves for the dismissal of his complaint to which a counterclaim has been
interposed?
The dismissal shall be limited to the complaint.
The dismissal shall be without prejudice to the right of the defendant to either prosecute his counterclaim in
a separate action or to have the same be resolved in the same action.
Should the defendant opt to prosecute his claim in a separate action, the court should render the
corresponding order granting and reserving his right to prosecute his claim in a separate complaint.
Should the defendant choose to have his counterclaim disposed of in the same action wherein the complaint
had been dismissed, he must manifest such preference to the trial court within 15 days from notice to him of
plaintiffs motion to dismiss.
Effect of non-manifestation: if there is no manifestation after 15 days the counterclaim will be dismissed.
Note: the principle that the dismissal of the complaint carries with it the dismissal of the counterclaim
applies to instances where the court has no jurisdiction over the main case.
When can there be a dismissal of the action due to the fault of the plaintiff?
Grounds: if these are present the court can dismiss the case motu propio
1. Failure of the plaintiff to appear on the date of the presentation of his evidence in chief without
justifiable reasons.
Presentation of evidence in chief- presentation of witnesses for direct examination
2. Failure of the plaintiff to prosecute his action for an unreasonable length of time
Criminal Cases- equivalent to speedy trial
3. Failure of the plaintiff to comply with the Rules of Court
4. Failure of the plaintiff to obey any order of the court.
Note:
The dismissal is with prejudice, except if the order provides otherwise. Thus when the dismissal does
not contain any condition at all, it has the effect of an adjudication on the merits as it is understood to
be with prejudice.
This is tantamount to Res Judicata, hence it is an exception to the rule on after trial and judgment on
the merits of res judicata.
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It is plaintiffs failure to appear at the trial, and not the absence of the lawyer, which warrants
dismissal. Where the counsel for the plaintiff had adduced evidence for his client, his failure to appear
at a subsequent hearing cannot be considered as failure to prosecute but only a waiver of the right to
cross-examine the witnesses for the defendant and to object to the admissibility of evidence for the
latter.
Dismissal of the case due to the fault of the plaintiff is not applicable in criminal cases.
What is meant by dismissal without prejudice?
It means that the plaintiff can re-file the case.
What is meant by dismissal with prejudice?
It means that the plaintiff cannot anymore re-file the case since it is barred.
MOTION TO INTERVENE
Rule 19
Side comment: Intervenor- translation: paki-alamiro
General Principles:
1. General Rule: Must be filed before the Trial courts [not appellate courts].
2. This is a remedy of a third person who has an interest over the litigation or the result of the litigation.
3. The allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court.
4. A motion for intervention is always done by leave of court.
5. Intervention is not intended to change the nature and character of the action itself. In general, an
independent controversy cannot be injected into a suit by intervention, hence such intervention will not be
allowed where it would enlarge the issues in the action and expand the scope of the remedies.
What is the nature of intervention?
Intervention is merely a collateral or accessory or ancillary to the principal action and not an independent
proceeding. With the final dismissal of the original action, the complaint in intervention can no longer be
acted upon.
Who may intervene?
1. A person who has a legal interest in the matter in litigation.
2. A person who has a legal interest in the success of either of the parties.
3. A person so situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof.
4. A person who has a legal interest both in the matter of litigation and the success of either parties.
What are the requisites of intervention?
1. There must be motion for intervention filed before rendition of judgment by the trial court.
2. The movant must show in his motion that he has
a. A legal interest in the matter in litigation.
b. The movant is so situated as to be affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof.
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c.
The intervention must not unduly delay or prejudice the adjudication of the rights of the original
parties and that the intervenors rights may not be fully protected in a separate proceeding.
Note:
Both requirements must concur!
The interest which entitles a person to intervene in a suit must be on the matter in litigation
and of such direct and immediate character that the intervenor will either gain or lose by the
direct legal operation and effect of the judgment.
When to file a complaint-in- intervention?
General Rule:
The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy
of the pleading-in-intervention shall be attached to the motion and served on the original parties.
Exception:
Intervention can be allowed even if there is already a judgment on the principal action or the judgment
became final or even the principal action is on appeal if the intervenor is an indispensable party.
When to file an answer to a complaint-in-intervention?
The answer to the complaint-in-intervention shall be filed within the 15 days from notice of the order
admitting the same, unless a different period is fixed by the court.
What will the intervenor file if he unites with the plaintiff?
Complaint-in-intervention against the defendant.
What will the intervenor file if he unites with the defendant?
Answer-in- intervention against the plaintiff.
What will the intervenor file if he does not ally himself to the parties?
Complaint in intervention against both parties.
What is the remedy of intervention was denied?
Improper denial- correctible by appeal
Improper denial with grave abuse of discretion- mandamus will lie, if there is no other plain, speedy and
adequate remedy.
Illustration:
Narinig mo ang kapitbahay mong nag-aaway. Nagdemandahan sila. Umusad ang kaso sa hukuman.
Tuwang-tuwa ka pero noong napadaan ka, narinig mo na ang iyong lupa pala ang pinag-aawayan. Base sa
kanilang mga ebidensya ang lupa mo nga ang pinag-aawayan nila. Hindi ka naman makasawsaw sa
tunggalian nila kasi hindi ka sinama na party in the case. Anu ang remedy mo?
Answer: By leave of court file a motion to intervene so as to protect your right or interest over your
property.
ANSWER
General Principles:
1. Under the law an answer is mandatory, otherwise the defendant will be declared in default.
2. The defendant may deny or accept the allegations in the complaint. If he specifically denies the allegations,
the case proceeds because there is an issue to be resolved. However, if he accepts all the allegations decision
will be rendered immediately.
3. General denial is considered an admission of the averment not specifically denied
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4.
5.
6.
The defendant may include in his answer his counterclaim, crossclaim, third-party complaint, fourth party
complaint and so on.
The defendant instead of filing his answer may file motion to dismiss if the complaint is dismissible.
Issues are joined upon filing of an answer.
What is an answer?
It is a pleading in which a defending party sets forth his defenses. It may allege legal provisions relied upon
for defense. Defenses are either negative or affirmative.
When the answer sets forth negative defenses, the burden of proof rest upon the plaintiff, and when the
answer alleges affirmative defenses, the burden of proof devolves upon the defendant.
Kinds of Defenses
I.
Affirmative Defenses
Allegations of new matters, which while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar the recovery to him.
It includes:
1. Fraud
2. Statute of limitations (prescription)
3. Release
4. Payment
5. Illegality
6. Statute of frauds
7. Estoppels
8. Former recovery
9. Discharge in bankruptcy
10. Res judicata
11. Ultra vires act of a corporation
12. Lack of authority of an agent
13. Laches
14. Unconstitutionality
15. Any other matter by way of confession and avoidance.
Other grounds that would bar recovery: Article 1231 NCC
1. By the loss of the thing due
2. By the condonation or remission of the debt
3. By the confusion or merger of the rights of creditor and debtor
4. By compensation
5. By novation
6. Annulment
7. Fulfillment or resolutory condition
II.
Negative Defenses
It is the specific denials of the material fact or facts alleged in the pleading of the claimant essential to
his cause or cause of action.
Forms of Denials
1. Absolute Denial
This happen when the defendant specify each material allegation of fact the truth of
which he does not admit and whenever practicable sets forth the substance of the
matters upon which he relies to support such denial.
2.
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Partial Denial
3.
This happen when the defendant does not make a total denial of the material
allegations in specific paragraph, denying only a part of the averment. In doing so he
specifies that part of the truth of which he admits and denies only the remainder.
Denial by Disavowal of Knowledge
This happen when the defendant alleging having no knowledge or information
sufficient to form a belief as to the truth of a material averment made in the
complaint. Such denial must be in good faith.
When the matter denied by a disavowal of knowledge is plainly and necessarily
within the defendants knowledge, such claim shall not be considered a specific
denial.
CASE: Republic vs. Sandiganbayan (July 15, 2003)
Several cases were filed against the Marcoses for forfeiture of properties and bank accounts
abroad which was alleged to be ill-gotten. In their pleading the Marcoses just alleged their lack
of knowledge of the said property and bank accounts.
In the trial, it was proven that their claim of lack of knowledge was not in good faith because
based on the evidences; Imelda Marcos penned her signature on the documents of said bank
accounts. At the outset she has knowledge of the thing which she is denying. Her signature
speaks for her knowledge of the same.
NOTE: If the denial does not fall within the scope of the abovementioned kinds of specific denial, it shall be
considered a general denial which is considered as an admission of the averment not specifically denied.
Negative Pregnant
It is tantamount to admission because it is pregnant with admitting the allegations.
It is an admission in avoidance which does not qualify as a specific denial.
It is a form of negative expression which carries with it an affirmation or at least an implication of
some kind of favorable to the adverse party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying
language and the words of the allegation as so qualified or modified are literally denied, the
qualifying, circumstance alone are denied while the fact itself is admitted.
In the case supra:
Despite the serious and specific allegations against them, the Marcoses responded by
simply saying that they had no knowledge or information sufficient to form a belief as to
the truth of such allegations. Such a general, self-serving claim of ignorance of the facts
alleged in the petition for forfeiture was insufficient to raise an issue. Respondent Marcoses
should have positively stated how it was that they were supposedly ignorant of the facts
alleged.
To elucidate here is a sample of the allegations of the Republic and the answer of private
respondents:
23. The following presentation very clearly and overwhelmingly show in detail how both
respondents clandestinely stashed away the countrys wealth to Switzerland and hid the
same under layers upon layers of foundations and other corporate entities to prevent its
detection. Through their dummies/nominees, fronts or agents who formed those
foundations or corporate entities, they opened and maintained numerous bank
accounts. But due to the difficulty if not the impossibility of detecting and documenting
all those secret accounts as well as the enormity of the deposits therein hidden, the
following presentation is confined to five identified accounts groups, with balances
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amounting to about $356-M with a reservation for the filing of a supplemental or separate
forfeiture complaint should the need arise.
The answer of private respondent
22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents
clandestinely stashed the countrys wealth in Switzerland and hid the same under layers
and layers of foundations and corporate entities for being false, the truth being that
Respondents aforesaid properties were lawfully acquired.
This is in the law of pleadings a negative pregnant. Although you specifically denied a certain
specific allegation but you did not present any evidence that would support your denial. The effect
is as if you admitted the substantial facts of the allegation even though you filed an answer
denying the same.
Actionable Documents
What is an Actionable Document?
Actionable documents are documents relied upon by either the plaintiff or the defendant.
How to plead actionable document?
Under the law the pleader is required to:
1. Set forth in the pleading the substance of the instrument or the document; or
2. To attach the original or the copy of the document to the pleading as an exhibit and to be
part of the pleading; or
3. To set forth in the pleading said copy of the instrument or document.
How to contest actionable documents?
Under the law, a denial of an actionable document must be:
1. Under oath of the defendant.
2. Couch in specific denial and sets forth what the defendant claims to be the facts [dapat
sabihin ng defendant kung ano ang dahilan niya at ang version niya ng kwento].
Exception: [check if a question involves actionable documents and if the party is a privy to the
actionable instrument].
Under the law the requirement of an oath does not apply
1. When the adverse party does not appear to be a party to the instrument or
2. When compliance with an order for an inspection of the original instrument is
refused [hindi pinayagan ng plaintiff na tingnan ang original copy ng actionable
document].
What is the effect of a denial of an actionable document is not under oath?
Under the law, if a denial of an actionable document is not under oath it is considered that the
defendant deemed to have admitted the genuineness and due execution of the document. But
it cannot preclude the defendant from assailing that the actionable document is obtained through
force and intimidation, because they are not part of genuineness.
Note: the form of the document can be attacked even if not under oath, such as its wordings, because it has
nothing to do with due execution and genuineness.
What is the effect if the defendant filed an answer but admitted all the allegations in the complaint?
There is no triable issue. Thus, there can be judgment on the merits.
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What is the effect if the defendant did not file his complaint and the reglementary period to file the same had
lapsed?
The defendant may be declared in default.
COUNTERCLAIM
General Principles:
1. It must be filed in the same court where the original complaint is filed. It must be filed with an answer
thusanswer with counterclaim. A counterclaim cannot be filed alone.
2. A compulsory counterclaim if not set is barred.
Except:
a. If the counterclaim matured or was acquired after the defendant had served his answer. Is such
case, it may be pleaded by filing a supplemental answer or pleading before judgment.
b. When a pleader fails to set up a counterclaim through oversight, inadvertence, excusable
negligence or when justice requires, he may, by leave of court, set up the counterclaim by
amendment of the pleadings at anytime before judgment.
c. Permissive counterclaims.
3. It requires non-payment of docket fee.
4. Does not need a certification of non-forum shopping.
5. A counterclaim or cross-claim need not be answered if it is based on and inseparable from the very defense
raised by the opposing party as it will merely result in said opposing party pleading the same facts already
raised in his former pleading or where the counterclaim merely alleges the opposite of the facts in the
complaint.
6. A plaintiff who chooses not to answer a compulsory counterclaim cannot be declared in default on such
counterclaim. The law controverts the allegation in the counterclaim in favor of the plaintiff.
What is a Counterclaim?
Any claim which a defending party may have against an opposing party.
Kinds:
I.
Compulsory Counterclaim
It arises out of and is necessarily connected with the subject matter of the plaintiffs claim.
Elements:
1. It arises out of, or is necessarily connected with the transaction or occurrence which is the subject matter
of the plaintiffs claim.
2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire
jurisdiction.
3. Subject to the qualification on the jurisdictional amount with regard to counterclaims raised in the trial
courts.
Illustration:
The case was filed in the MTC. What if the defendant has a counterclaim beyond the jurisdictional
amount of the MTC and he insists that it must be decided along with the original complaint, can the
court decide on the case and award the amount prayed in the counterclaim?
Answer: Yes! But the award of counterclaim will not exceed the jurisdictional amount of the
MTC. Thus if the counterclaim of the defendant is 500,000 he may only be awarded only up to
300,000.
Test to Determine Whether or not a counterclaim is Compulsory
1. Are the issues affect or law raised by the claim and counterclaim largely the same.
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2.
3.
4.
II.
Would res judicata bar a subsequent suit on defendants claims absent the compulsory counterclaim
rule?
Will substantially the same evidence support or refute plaintiffs claim as well as the defendants
counterclaim?
Is there any logical relation between the claim and the counterclaim?
Permissive Counterclaim
Does not arise out of nor is it necessarily connected with the subject matter of the opposing partys
claim. It is not barred even if not set up in the action.
Characteristics of a permissive counterclaim:
1. Even if not set up is not barred because it doesnt arise out of the same transaction as that of
the complaint.
2. It can be brought as a separate action in itself.
3. Docket fee must be paid.
4. It must be answered by the adverse party to prevent default.
5. It needs certificate against forum shopping
Requirements of a permissive Counterclaim
1. It does not require for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction.
2. It must be within the jurisdiction of the court wherein the case is pending and cognizable by the
regular court of justice.
3. It does not arise out of the same transaction of series of transactions subject of the complaint.
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Suggested answer: No, because if no motion to dismiss has been filed, any of the grounds for
dismissal provided in the Rules may be pleaded as an affirmative defense in the answer which may
include a counterclaim. This is what A did by filing an Answer alleging the lack of legal capacity of
EE Industries to sue because it is not a duly registered corporation with a counterclaim for
damages. The dismissal of the complaint on this ground is without prejudice to the prosecution of
the counterclaim in the same action because it is a compulsory counterclaim. (Sec. 6 of Rule 16.)
CROSS CLAIM
What is a Cross claim?
It must be filed together with an answer. It cannot be filed independentlythus, answer with a crossclaim
Presupposes two or more defendants
Filed against a co-party
By its very nature it is compulsory
It always arises out of the transaction or occurrence that is the subject matter either of the original
complaint/ action or of a counterclaim therein.
General rule: a cross-claim which is not set up in the action is barred.
Exception:
When it is outside the jurisdiction of the court or if the court cannot acquire jurisdiction
over third parties whose presence is necessary for the adjudication of said cross- claim.
Note:
The dismissal of the counterclaim carries with it the dismissal of a cross-claim which is purely defensive, but
not a cross claim seeking affirmative relief.
Illustration:
BAR
B and C borrowed P400, 000.00 from A. The promissory note was executed by B and C in a Joint and several
capacity. B, who received the money from A, gave C P200, 000.00. C, in turn, loaned P100,000.00 out of the
P200,000.00 he received to D. a) In an action filed by A against B and C with the RTC of Quezon City, can B
file a cross-claim against C for the amount of P200,000.00? b) Can C file a third party complaint against D for
the amount of P 100,000.00?
Suggested answer:
(a) Yes. B can file a cross-claim against C for the amount of 200,000.00 given to C. A cross-claim is a claim
filed by one party against a co-party arising out of the transaction or occurrence that is the subject matter of
the original action or a counterclaim therein and may include a claim that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a claim asserted against the cross-claimant.
(Sec. 8 Rule 6)
(b) No, C cannot file a third-party complaint against D because the loan of P100, 000 has no connection with
the opponent's claim. C could have loaned the money out of other funds in his possession.
Alternative answer
Yes, C can file a third-party complaint against D because the loan of 100,000.00 was taken out of the P200,
000 received from B and hence the loan seeks contribution in respect to his opponent's claim. (Sec. 11 of Rule
6)
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3.
4.
5.
Motion for Leave of court to file a third party complaint is necessary. The third party complaint must be
attached to the motion.
It is an initiatory pleading as against the third party defendant, therefore payment of docket fees is
mandatory.
Note: payment of docket fee should not immediately be done because third party complaint is by
leave of court. There is a tendency that the court will not grant the third party complaint. Sayang
yon ibinayad pag nadeny kasi walang refund!
It is filed by the defendant. Thus in the third party complaint the defendant is the plaintiff in the third party
complaint and the one impleaded in the third party complaint is the third party defendant.
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2.
3.
answer, certiorari is available as remedy (Matute case 26 SCRA 798; Akut vs CA, 116
SCRA 216).
What will the plaintiff do if the defendant was declared in default and the defendants motion to lift order of
default was not granted?
If the evidences are sufficient to warrant judgment, the plaintiff may submit the case for decision.
If the evidences are insufficient so as to warrant judgment, the plaintiff is required to present his evidence
ex-parte, and thereafter the case may be submitted for decision.
When does a partial default occur?
There are several parties and are required to individually submit their answers but some of them did not.
REPLY
What is a reply?
A pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or make issue as to such matters.
Is filing a reply mandatory?
General Rule:
The filing of a reply is optional as the new matters raised in the answer are deemed controverted
even without a reply.
Exceptions:
Filing a reply is mandatory and must be verified and must be filed within 10 days from the receipt
of answer in the following:
1. Where the answer alleges the defense of usury in which case reply under such oath is
required otherwise the allegations of usury are deemed admitted.
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2.
Where the answer is based on an actionable document in which case a verified reply is
necessary, otherwise the genuineness and due execution of said actionable document are
generally deemed admitted.
1.
2.
3.
4.
5.
6.
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CALENDAR OF CASES
Rule 20
Who keeps calendar of cases?
The clerk of court is required to keep at least 4 separate calendars reflecting the cases for pre-trial, for trial,
those whose trails were adjourned and postponed, and those requested to be set for hearing.
The presiding judge exercises direct supervision over the calendar of cases.
Note: in the calendar of cases, preference shall be given to Habeas Corpus cases, election cases, special civil
actions, and those required by law.
How is assignment of cases to different branches of the court done?
The assignment of cases is required to be done exclusively by raffle.
Also the raffle shall be done in open session with prior notice to the interested parties.
MOTION FOR PRE- TRIAL
Rule 18
General Principles:
1. Pre-trial and trial on the merits of the case must be held in separate dates.
2. Pre-trial is mandatory both in civil and criminal cases.
Parties are required to appear and are directed to submit their pre-trial briefs.
Contents pre-trial briefs:
o Proposals for stipulation
o Evidence: documentary and testimonial
o Names of witnesses and the things they will testify
o
o
1.
2.
3.
4.
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Pre-trial Order
Signed by the judge and counsel of the parties.
Purpose: shall guide the course of the trial
Pre-trial Proper
Summary of the case
Stipulation of facts
o Go over the proposals in pre-trial brief.
Admitted facts
Disputed facts
Issue
Marking of evidence/ exhibits.
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3.
All civil and criminal cases filed with Certificate to File Action issued by the Punong Barangay or the
Pangkat ng Tagapagkasundo under the revised Katarungang Pambarangay Law.
4. The civil aspect of quasi-offenses under Title 14 of the RPC.
5. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years
imprisonment, where the offended party is a private person.
6. The civil aspect of estafa, theft, and libel.
7. All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and
original jurisdiction granted to the first level courts.
8. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original
jurisdiction granted to the first level courts.
9. All civil cases involving title or possession of real property or an interest therein brought on appeal from
the exclusive and original jurisdiction granted to the first level courts.
10. All habeas corpus cases decided by the first level courts in the absence of the RTC judge that are brought
on appeal from the special jurisdiction granted to the first level courts.
CASES NOT COVERED BY CAM AND JDR
1. Civil cases which by law cannot be compromised.
Article 2035, Civil Code: no compromise upon the following questions shall be valid:
1. The civil status of persons;
2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
2. Other cases not covered under paragraph 3 to 6 above.
3. Habeas corpus petitions.
4. All cases under Republic Act No. 9262 [Violence against Women and Children].
5. Case with pending application for Restraining Orders/ Preliminary Injunctions.
Note:
However in cases covered under 1, 4, and 5 where the parties inform the court that they have agreed to
undergo mediation on some aspects thereof, e.g., custody of minor children, separation of property, or
support pendente lite, the court shall refer them to mediation.
Who are required to appear during CAM and JDR?
Individual Parties- required to personally appear for mediation. In the event they cannot do so, they can
send their representatives who must be fully authorized to appear, negotiate, and enter into a compromise,
through a Special Power of Attorney.
Juridical Entity as party- shall be represented by a ranking corporate officer fully authorized by a Board
Resolution to offer, negotiate, accept, decide and enter into compromise agreement, without need of further
approval by or notification to the authorizing party.
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3.
4.
5.
The concerned mediator shall forthwith start the mediation process, unless the parties and mediator agree to
reset the initial mediation conference, which shall not be later than 5 days from the original date.
With the consent of both parties, the mediator may hold separate caucuses with each party to determine
their respective real interests in the dispute. Thereafter, another joint conference maybe held to consider
various options that may resolve the dispute through reciprocal concessions and on terms that are mutually
beneficial to both the parties.
If no settlement has been reached at the end of the period given, the case must be returned to the referring
judge for JDR.
Note:
The mediator shall not record in any manner the proceedings of the joint conference or of the separate
caucuses. No transcript or minutes of mediation proceedings shall be taken. If personal notes are taken for
guidance, the notes shall be shredded and destroyed. Should such record exist; they shall not be admissible
as evidence in any other proceedings.
DURATION OF MEDIATION IN THE PMC
The mediator shall have a period of not exceeding 30 days to complete the mediation process. Such period
shall be computed from the date when the parties first appeared for the initial conference as stated in the
order to appear. An extended period of another 30 days may be granted by the court, upon motion filed by
the mediator with the conformity of the parties.
SUSPENSION OF PERIODS
The period during which the case is undergoing mediation shall be excluded from the regular and
mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary
proceedings.
SETTLEMENT
If full settlement- the parties assisted by their respective counsels, shall draft the compromise agreement
which shall be submitted to the court for judgment upon compromise or other appropriate action. Where
compliance is forthwith made, the parties shall instead submit a satisfaction of claims or a mutual
withdrawal of the case and, thereafter the court shall enter an order dismissing the case.
If partial settlement- the parties shall with the assistance of counsel submit the terms thereof for the
appropriate action of the court without waiting for resolution of the unsettled part. In relation to the
unsettled part of the dispute, the court shall proceed to conduct JDR proceedings.
Note:
Article 2037, Civil Code- A compromise agreement has upon the parties the effect and authority of res
judicata; but there shall be no execution except in compliance with a judicial compromise.
If full settlement- agreement is res judicata on the entire case; if partial settlement- agreement is res judicata
on the part of the case agreed upon by the parties.
Remedy against a compromise agreement.
General Rule:
Par. 1 of Art. 2038, Civil Code- A compromise in which there is mistake, fraud, violence,
intimidation, undue influence, or falsity of documents, is subject to the provisions of 1330
of this code.
Article 1330, Civil Code- A contract where consent is given through mistake, violence,
intimidation, undue influence or fraud is voidable.
Exception:
Par. 2 of Art. 2038, Civil Code- However one of the parties cannot set up a mistake of fact
as against the other if the latter, by virtue of the compromise, has withdrawn from a
litigation already commenced. [Kaya kapag may ground ka to annul the compromise
agreement ilatag mo na bago magwithdraw ang other party].
JUDICIAL DISPUTE RESOLUTION
PROCEDURE OF JDR
1. When? At the initial stage of the pre-trial conference, the JDR judge briefs the parties and counsels of the
CAM and JDR processes. Thereafter, he issues an Order of Referral of the case to CAM and directs the
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2.
3.
parties and their counsels to proceed to the PMCU bringing with them a copy of the Order of Referral. The
JDR judge shall include in said order, or in another order the pre-setting of the case for JDR not earlier than
45 days from the time the parties first personally appear at the PMCU so that JDR will be conducted
immediately if the parties do not settle at CAM.
Role of a JDR judge: if the parties do not settle their dispute at CAM, the parties and their counsels shall
appear at the preset date before the JDR judge, who will then conduct the JDR process as mediator, neutral
evaluator and/or conciliator in order to actively assist and facilitate negotiations among the parties for
them to settle their dispute. As mediator and conciliator, the judge facilitates the settlement discussions. As
a neutral evaluator, the judge assesses the relative strength and weaknesses of each partys case and
makes a non-binding and impartial evaluation of the chances of each partys success in the case. On the
basis of such neutral evaluation, the judge persuades the parties to a fair and mutually acceptable
settlement for dispute.
If the parties settled the case it will not continue for pre-trial proper and judgment will be rendered
adopting the compromise agreement. If the parties do not agree to a compromise, the case is re-raffled for
pre-trial proper.
QUESTION: Can the JDR judge be the one to try the case for pre-trial until judgment?
Yes! Before the commencement of the JDR proceedings the parties may file a joint written motion
requesting that the court of origin conduct the JDR proceedings and trial.
4.
Despite the non-mediatable nature of the principal case, like annulment of marriage, other
issues such as custody of children, support, visitation, property relations and guardianship,
may be referred to CAM and JDR to limit the issues for trial.
Commercial, Intellectual Property, and Environmental Courts
The JDR proceedings in areas where only one court is designated as commercial/intellectual
property/ environmental court, hereafter referred to as special court, shall be conducted by
another judge through raffle and not by the judge of the special court. Where settlement is not
reached, the judge of the special court shall be the trial judge. Any incident or motion filed before
the pre-trial stage shall be dealt with by the special court that shall refer the case to CAM.
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If settlement is reached during JDR, the JDR court shall take appropriate action thereon, i.e. approval/
disapproval of the compromise agreement. If settlement is not reached at JDR, the case shall be returned to
the referring court for continuation of trial.
In single sala courts, the JDR shall be conducted by the nearest court [or pair court, if any] regardless of the
level of the latter court. The result of the JDR proceedings shall be referred to the court of origin for
appropriate action, e.g., approval of the compromise agreement, trial, etc.
Note:
The parties may by joint written motion, despite confidential information that may be divulged during JDR
proceedings, file a request that their case be not transferred to other courts for JDR and that they agree to
have the trial judge continue the trial should the case not be settled through JDR.
PROVISIONS COMMON TO BOTH JDR AND CAM
CONFIDENTIALITY
Any and all matters discussed or communications made, including requests for mediation, and documents
presented during the mediation proceedings before the Philippine Mediation Center or the JDR proceedings
before the trial judge shall be privileged and confidential, and the same shall be inadmissible as evidence
for any purpose in any other proceedings. However, evidence or information that is otherwise admissible
does not become inadmissible solely by reason of its use in mediation or conciliation.
Further, the JDR judge shall not pass any information obtained in the course of conciliation and early
neutral evaluation to the trial judge or to any other person. This prohibition shall include all court personnel
or any other person present during such proceedings. All JDR conferences shall be conducted in private.
ROLE OF LAWYERS IN MEDIATION AND IN JDR PROCEEDINGS
Lawyers may attend mediation proceedings in the role of adviser and consultant to their clients, dropping
their combative role in the adjudicative process, and giving up their dominant role in judicial trials. They
must accept a less directive role in order to allow the parties more opportunities to craft their own
agreement.
In particular, they shall perform the following function:
1. Help their clients comprehend the mediation process and its benefits and allow them to assume
greater personal responsibility in making decisions for success of mediation in resolving the
dispute.
2. Discuss with their clients the following:
The substantive issues involved in the dispute.
Prioritization of resolution in terms of importance to client.
Understanding the position of the other side and the underlying fears, concerns, and needs
underneath that position.
Need for more information or facts to be gathered or exchange with the other side for
informed decision making.
Possible bargaining options but stressing the need to be open-minded about other
possibilities.
The best, worst, and most likely alternatives to a negotiated agreement.
3. Assist in preparing a compromise agreement that is not contrary to law, morals, good customs,
public order, or public policy so that the same may be approved by the court, paying particular
attention to issues of voluntary compliance of what have been agreed upon, or otherwise to issues
of enforcement in case of breach.
4. Assist, wherever applicable, in the preparation of a manifestation of satisfaction of claims and
mutual withdrawal of complaint and counterclaim as basis for the court to issue an order of
dismissal.
PRE- TRIAL PROPER
What is a Pre-Trial?
It is a mandatory conference and personal confrontation before the judge between the parties and their
respective counsel.
It is an informal meeting which opposing attorneys confer usually with the judge, to work toward the
disposition of the case by discussing matters of evidence and narrowing the issues that will be tried.
When can a pre-trial be conducted?
Under the law, pre-trial will be conducted after the last pleading has been served and filed.
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General Rule:
A pre-trial cannot validly be held until the last pleading has been filed. The last pleading may be
the plaintiffs reply.
Exception:
Where the period to file a last pleading has lapsed. The pre-trial may be properly scheduled even if
the plaintiff had not yet filed his answer to the defendants compulsory counterclaim since no
answer is required to be filed thereto.
Who can move for the scheduling of a pre-trial?
It is the plaintiff and not the court or defendant that will cause the scheduling of the pre-trial. How?
Through a motion ex-parte.
What is the purpose of pre-trial? In the pre-trial the court shall consider:
1. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution.
2. The simplification of the issues.
3. The necessity or desirability of amendments to the pleadings.
4. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary
proof.
5. The limitation of the number of witnesses.
6. The admissibility of a preliminary reference of issues to a commissioner.
7. The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action
should a valid ground therefor be found to exist.
8. The advisability or necessity of suspending the proceedings.
9. Such other matters as may aid in the prompt disposition of the action.
What is the bearing of facts found during the pre-trial?
The findings of fact of a trial court consequent to a pre-trial conference are findings which are based on
evidence and can accordingly support a decision or an order.
Must a notice of pre-trial be served to the other party?
Yes! Under the law all written motions should be furnished to the adverse party. The notice of pre-trial shall
be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged
with the duty of notifying the party represented by him.
Is presence of the parties in the pre-trial mandatory? Yes!
General Rule:
It shall be the duty of the parties and their counsel to appear at the pre-trial.
Except:
1. The non-appearance of a party maybe excused only if a valid cause is shown therefor OR
2. If a representative shall appear in his behalf fully authorized in writing.
Take note!
It must further be noted that the special authority should confer on the partys representative not only the
power to enter into compromise, but also to submit to alternative modes of dispute settlement, and to
enter into stipulations or admissions of facts and documents.
If the authority is not complete, the party is considered as absent.
Also the mere representation of such written authority is not sufficient, but must be complemented by a
showing of valid cause for the non-appearance of the party himself.
What is the effect of failure to appear in the pre-trial?
Plaintiff
Failure to appear in the pre-trial shall be cause for dismissal of the action.
The dismissal shall be with prejudice unless otherwise ordered by the court.
Defendant
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Defendants failure to appear in the pre-trial shall be cause to allow the plaintiff to present his evidence
ex parte and the court to render judgment on the basis thereof.
What are the remedies if case was dismissed due to non-appearance in the pre-trial?
Plaintiff
Appeal from the order of dismissal, the same being a final order because it was a dismissal with
prejudice.
File a motion for reconsideration.
Defendant
The order of the court allowing the plaintiff to present his evidence ex parte does not dispose of the case
with finality. The order is there merely interlocutory; hence not appealable. Ergo the remedy of the
defendant who feels aggrieved by the order is as follows:
1. File for a motion for reconsideration without need for affidavits or merits regarding the fraud,
accident, mistake, or excusable negligence, obviously because the defenses of the defendant
are set out in his answer.
2. If MR is denied, certiorari is the remedy as such order of default is interlocutory.
Do filing an amended complaint after pre-trial necessitates another pre-trial?
No! Where a pre-trial has already been held, the fact that an amended complaint was later filed, with leave
of court, does not necessitate another pre-trial.
What is a pre-trial brief?
A pre-trial brief is a document prepared by a legal counsel for a plaintiff or defendant that summarizes the
facts of a case and the legal arguments she will present during the trial.
Pre-trial briefs typically include applicable laws, rules of procedure and other information relevant to the
case.
Who will file and serve pre-trial briefs?
Plaintiff/s and defendant/s
When should a pre-trial brief be filed with the court and serve on the adverse party?
The parties shall file with the court their respective pre-trial briefs which shall be received at least 3 days
before the date of pre-trial. This pre-trial brief shall be served on the adverse party.
What are the contents of a pre-trial brief?
1. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution,
indicating the desired terms thereof.
2. A summary of admitted facts and proposed stipulation of facts.
3. The issues to be tried or resolved
4. The documents or exhibits to be presented, stating the purpose thereof.
5. A manifestation of their having availed or their intention to avail themselves of discovery procedures or
referral to commissioners
6. The number and names of the witnesses and the substance of their respective testimonies.
What is the effect of failure to file a pre-trial brief?
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Ergo, apply the
rules on non-appearance in the pre-trial.
Do the proceedings in the pre-trial needs to be recorded? What is the binding effect of the records? Yes!
Civil Cases
Upon the termination of the pre-trial, the court shall issue an order which shall recite in detail the
matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings
and the agreements or admissions made by the parties as to any of the matters considered. Should the
action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of
the order shall control the subsequent course of the action, unless modified before trial to prevent
manifest injustice.
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Criminal case
An agreement or admission of a party in the pre-trial conference shall be admissible against him only if
reduced to writing and signed by him and his counsel.
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Summary Judgments
There is an issue tendered in the answer, but it is not
genuine or real issue as may be shown by affidavits
and depositions that there is no real issue and that the
party is entitled to judgment as a matter of right;
The opposing party is given 10 days notice;
It may only be partial
Either the plaintiff or the defendant may file it.
MODES OF DISCOVERY
Rule 23-38
General Principle:
The various Modes of Discovery are intended to be cumulative and not alternative or mutually exclusive.
One can avail all the Modes of Discovery simultaneously.
Modes of Discovery are done usually during the pre-trial. Its purpose is to prepare the parties for trial.
May the modes of discovery be used on no-parties? No. only deposition may be used on non-parties and
not the modes of discovery.
What are the Modes of Discovery?
1. Depositions Pending Action- Rule 23
2. Depositions Before Action or Pending Trial- Rule 24
3. Interrogatories to Parties- Rule 25
4. Admission by Adverse Party- Rule 26
5. Production or Inspection of Documents or Things- Rule 27
6. Physical and Mental Examination of Persons- Rule 28
What is the importance of the Modes of Discovery?
The importance of the rules of discovery is that they shorten the period of litigation and speed up
adjudication. The evident purpose is to enable the parties, consistent with recognized principles, to obtain
the fullest possible knowledge of the facts and issues before civil trials and thus prevent said trials from
being carried on the dark. The rules of discovery serve as:
a) Devices along with the pre-trial hearing under Rule 18, to narrow and clarify the basic issues between
the parties; and
b) Devices for ascertaining the facts relative to those issues [Republic vs. Sandiganbayan, 204 SCRA 212].
What are the basic purposes of the Modes of Discovery?
1. To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of
third parties through depositions.
2. To obtain knowledge of material facts or admissions from the adverse party through written interrogatories.
3. To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant
matters of fact through requests for admissions.
4. To inspect relevant documents or objects, and lands or other property in the possession and control of the
adverse party; and
5. To determine the physical or mental condition of a party when such is in controversy.
What are the three principal characteristics of discovery?
1. It is largely self-executing process. For the most part, lawyers conduct discovery without judicial approval,
participation, or regulation.
2. The discovery rules are flexible and permit any order, and repeated use, of the various discovery methods
subject only to court protection against abuse.
3. Orders regulating discovery are usually not final appealable orders. Since discovery issues will often be
moot by the time a final judgment is entered in the case, appeals are relatively infrequent. This means that
issues concerning discovery are principally resolved at the trial court level.
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Is the availability of deponent during trial will not allow the taking of depositions?
No because it is only a mode of discovery.
Can you take deposition even after pre-trial?
Yes!
Are the Modes of Discovery applicable to criminal cases?
Yes! Except Interrogatories to Parties and Depositions before Action.
Why? Because it violates the principle that an accused is always presumed innocent until proven otherwise.
To serve the adverse party written interrogatories violates this principle for the adverse party is compelled
to answer the questions which may incriminate himself. Written interrogatories constitute a fishing
expedition, which is violative other accused constitutional right against self-incrimination. Lastly, the
prosecution must first present its evidence.
Is private investigation a mode of discovery?
No! Because there is no opportunity for the adverse party to cross-examine. Even if the investigator is
presented in court as a witness, most likely the entire information gathered by him is all hearsay. The laws
on evidence provides that the witness must have a personal knowledge of what he is testifying.
Illustration:
Atty: Are you sure that Mr. X is having an affair with Ms. Y?
Private Investigator: Yes, sir.
Atty: How did you come to know about this?
Private Investigator: Based on the information of all the people whom I talked, Sir.
This cannot be. This is hearsay. The testimony has no probative value and is inadmissible in evidence.
DEPOSITIONS PENDING ACTION [Rule 23]
What is a deposition?
Deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a
party to the action.
Classifications of Depositions
1. Depositions on oral examination and depositions upon written interrogatories; or
2. Depositions de bene esse and depositions in perpetuam rei memoriam.
Depositions de bene esse- those taken for purposes of a pending action.
Depositions in perpetuam rei memoriam- those taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case on appeal.
What is the distinction between affidavit and deposition?
While an affidavit is also under oath, it is distinguished from a deposition in that it is executed ex parte
without any opportunity for the other parties to attend and cross-examine the affiant. Hence an affidavit is
hearsay and inadmissible in evidence while a deposition is admissible in evidence.
Deposition is an exception to the hearsay rule because there is an opportunity for the other parties to crossexamine the affiant.
Who can be subjected to depositions?
Any party or witness.
Who can make use of depositions?
Any party.
During the taking of deposition is the presence of the adverse party necessary?
Yes! Because they have to cross-examine the witnesses. This is the reason why the proponent must notify the
adverse party.
What if despite notice, the adverse party did not appear?
He had deemed to waive his right to cross-examine the witness. In addition he may be made to pay the
expenses in the taking of the deposition and be cited in contempt.
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Note:
In lieu of participating in the oral examination, parties served with notice of taking deposition
may transmit written interrogatories to the officers, who shall propound them to the witnesses
and record the answers verbatim.
Who are not qualified to take depositions?
Section 13, Rule 23(1) No deposition shall be taken before a person who is a relative within the 6th degree of
consanguinity or affinity, or employee or counsel of any of the parties;
(2) Or who is a relative within the same degree or employee of such counsel,
(3) Or who is financially interested in the action.
When is leave of court required when deposition is taken abroad?
Leave of court is not required when the deposition is to be taken before a secretary of embassy or legation,
consul, general consul, vice-consul or consular agent of the republic of the Philippines and defendants
answer has been served.
However, if the deposition is to be taken is a foreign country where the Philippines has no secretary of
embassy or legation, consul, general consul, vice consul or consular agent, it may be taken only before such
person or officer as may be appointed under letters rogatory.
Thus, leave of court is necessary in letters of rogatory because you will apply for it in the court. The court
may grant or deny it. The judicial officer will not be the one to take the deposition. He will commission
someone. He will act as an intermediary only.
Against whom depositions is used?
Depositions can be used against:
1. Any party who was present during the taking of deposition.
2. Any party represented at the taking of the deposition.
3. Any party who had due notice of the taking of deposition.
What are the uses of depositions?
Depositions may be use for:
1. Contradicting or impeaching the testimony of the deponent as a witness. The one to be impeached is
the inconsistency of the testimony of a witness and his depositions if he testifies during trial;
2. Any purpose by the adverse party where the deponent is a party;
3. Any purpose by any party, where the deponent is a witness if the court finds that:
a) The witness is dead;
b) The witness resides more than 100 kilometers from the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence was procured by the party offering the
deposition.
c) The witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment;
or
d) The party offering the deposition has been unable to procure the attendance of witnesses by
subpoena; or
e) When exceptional circumstances exist.
What is the scope of examination in a deposition pending action?
Unless otherwise ordered by the court, the deponent may be examined regarding:
a) Any matter not privileged;
b) Which is relevant to the pending action, whether relating to the claim or defense of any other party;
c) Not covered by a protective order of the court.
Are depositions of original parties binding upon substitute parties?
Yes! As per Section 5, Rule 23.
Substitution of parties does not affect the right to use depositions previously taken.
When an action has been dismissed and another action involving the same subject is afterward brought
between the same parties of their representatives or successors in interest, all depositions lawfully taken and
duly filed in the former action may be used in the latter as if originally taken therefor.
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Does the deponent automatically become a witness of a party that took his depositions?
No! As per Section 7, Rule 23- A party shall not be deemed to make a person his own witness for any
purpose by taking his deposition.
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1.
2.
On motion of any party upon whom the notice is served, the court may for cause shown enlarge or
shorten the time.
For the protection of the parties and deponents, Section 16, Rule 23 provides that: After notice is
served for taking a deposition by oral examination, upon motion seasonably made by any party or
by the person to be examined and for good cause showna) The court in which the action is pending may make an order that the deposition shall not
be taken or that it may be taken only at some designated place other than that stated in the
notice or that it, may be taken only on written interrogatories or that certain matters shall
not be inquired into, or that the scope of the examination shall be held with no one present
except the parties to the action and their officers or counsel, or that after being sealed, the
deposition shall be opened only by order of the court, or that secret processes,
developments, or research need not be disclosed or that the parties shall simultaneously
filed specified documents or information enclosed in sealed envelopes to be opened as
directed by the court;
b) The court may make any other order which justice requires to protect the party or witness
from annoyance, embarrassment or oppression.
Comment: Only upon motion seasonably made and upon showing of good cause that Section 16, Rule
23 will apply. The court will not motu propio apply it.
How shall an ORAL DEPOSITION be taken?
1. The officer before whom the deposition is to be taken shall put the witness on oath.
2. The officer shall personally, or by someone acting under his direction and presence, record the testimony of
the witness.
3. The testimony shall be taken stenographically unless the parties agree otherwise.
4. All objections made at the time of the examination shall be noted by the officer upon the deposition.
a) Objections to the qualifications of the officer taking the deposition
b) Objections to the manner of taking the deposition.
c) Objections to the evidence presented.
d) Objections to the conduct of any party.
e) Any other objections to the proceedings.
5. Evidence objected to shall be taken subject to the objections. Note that the officer has no power to rule on
the objections.
6. In lieu of participating in the oral examination, parties served with notice of taking a deposition may
transmit written interrogatories to the officers, who shall propound them to the witness and record the
answers verbatim.
7. Certification and Filing by Officer
The officer shall certify on the deposition that the witness was duly sworn to by him and that the
deposition is a true record of the testimony given by the witness.
He shall then securely seal the deposition in an envelope enclosed with the title of the action and
marked Deposition of [insert name of deponent], and shall promptly file it with the court in which
the action is pending or send it by registered mail to the clerk thereof for filing.
8. Notice of Filing
The officer taking the deposition shall give prompt notice of its filing to all the parties.
9. Furnishing of Copies
Upon payment of reasonable charges therefor [by the requesting party], the officer shall furnish a
copy of the deposition to any party or to the deponent.
WRITTEN INTERROGATORIES
Answers may be in written form or oral. If in oral form it should be transcribed.
It covers any party or any witness.
What is the procedure of taking written interrogatories?
1. A party desiring to take the deposition of any person upon written interrogatories shall serve them upon
every other party with a notice stating the name and address of the person who is to answer them and the
name or descriptive title of the officer before whom the deposition is to be taken.
2. Within 10 days thereafter, a party so served may serve cross-interrogatories upon the party proposing to
take deposition.
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3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Within 5 days thereafter the latter may serve redirect interrogatories upon the party who has served crossinterrogatories.
Within 3 days after being served with redirect interrogatories, a party may serve recross-interrogatories
upon the party proposing to take the deposition.
The party taking the deposition shall deliver the notice to take deposition and copies of all interrogatories to
the officer before them whom the deposition shall be taken.
The officer shall propound the written interrogatories to the witness and record the answers verbatim.
When the testimony of the witness is fully transcribed, it shall be submitted to the witness for examination
and reading, unless such examination and reading are waived by the witness.
Any changes in form and substance which the witness desires to make shall be entered upon the deposition
with a statement of the reasons given therefor.
The deposition shall there be signed by the witness, unless signing is waived by the parties or the witness is
ill, cannot be found or refuse to sign.
If the deposition is not required by the witness, the officer shall sign it with a statement of waiver or of the
illness or absence of the witness of his refusal to sign.
The officer shall then certify and file or mail the deposition attaching thereto a copy of the notice and the
interrogatories received by him.
The officer shall promptly give notice of such filing to all the parties.
He may furnish copies to any parties upon payment on the necessary fees by the party obtaining it.
2.
3.
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Contents of the Verified petition The petition shall be entitled in the name of the petitioner and
shall show:
1. That the petitioner expects to be a party to an action in a court of the Philippines but is
presently unable to bring it or cause it to be brought;
2. The subject matter of the expected action and his interest therein;
3. The facts which he desires to establish by the proposed testimony and his reasons for
desiring it to perpetuate;
4. The names or a description of the persons he expects will be adverse parties and their
addresses so far as known;
5. The names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask for an order authorizing the
petitioner to take the depositions of the persons to be examined named in the petition for
the purpose of perpetuating their testimony.
Notice and Service
The petitioner shall serve a notice upon each person named in the petition as an expected adverse
party, together with a copy of the petition, stating that the petitioner will apply to the court, at a
time and place named therein, for the order describe in the petition.
At least 20 days before the date of the hearing, the court shall cause notice thereof to be served on
the parties and prospective deponents in the manner provided for service of summons.
Order of Examination
If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the persons whose depositions shall be
4.
taken upon oral examination or written interrogatories. The depositions may then be taken in
accordance with Rule 23 before the hearing.
Reference to Court
For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference
therein to the court in which the action is pending shall be deemed to refer to the court in which the
petition for such deposition was filed.
When to avail?
With leave of court- before answer has been served.
Without leave of court- after answer has been served.
What is the importance of interrogatories to parties?
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2.
3.
Good cause- means a substantial reason- one that affords a legal excuse. The matter of good
cause is to be determined by the court.
The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person
making them. The party upon whom the interrogatories have been served shall file and served a copy of the
answers on the party submitting the interrogatories within 15 days after service thereof, unless the court, on
motion and for good cause shown, extends or shortens the time [Section 2].
Objections to any interrogatories may be presented to the court within 10 days after service thereof, with
notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be
at as early a time as is practicable [Section 3].
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85
b)
Detailed reasons why the party asked to admit cannot truthfully either admit or deny those
matters sought to be admitted.
When should objections to any request for admission be made?
Objections to any request for admission shall be submitted to the court by the party requested within the
period for serving and filing this sworn statement or the period fixed by the court and prior to the filing
of his sworn statement.
Filing of the objection shall defer the proceeding and toll the running of the period until such objections are
resolved, which resolution shall be made as early as practicable.
What is the effect of admission?
Any admission made by a party pursuant to such request is for the purpose of the pending action only and
shall not constitute an admission by him for any other purpose nor may the same be used against him in
any other proceeding.
What is the effect of failure to file and serve request for admission?
General rule: the party who fails to file and serve a request for admission on the adverse party of material
and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be
permitted to present evidence such facts.
Exception: even if there was failure to file and serve a request of admission, the party shall be permitted to
present evidence on such facts if allowed by the court for good cause shown and to prevent failure of justice.
Can an admission be withdrawn?
Yes! The court may allow the party making an admission whether express or implied to withdraw or amend
it upon such terms as may be just.
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS [Rule 27]
Rule 27 contra Subpoena Duces Tecum
Rule 27
Subpoena duces tecum
1. A showing for good cause and upon motion is 1. Subpoena duces tecum may issue upon an ex parte
required for an order for the production or inspection application.
of documents or things.
2. May be directed to a non-party.
2. An order for production or inspection of documents 3. Is a process used during the trial proper and
or things can only be directed to a party.
contemplates that the party applying for its issuance
3. A motion for a production or inspection order is a intends to present in evidence the witness or the things
pre-trial discovery device intended to obtain facts or subject thereof.
documents in order to prepare for trial; the movant
may opt to use such facts or documents.
When is it availed? Who can avail?
It is availed upon motion of any party showing good cause therefor. Thus this mode of discovery is always
with leave of court because you must show good reason and that the party is in possession of the same.
What will the court do?
If satisfied that there is a good cause the court maya) Order any party to produce and permit the inspection and copying or photographing, by or on
behalf of the moving party, of any designated document, papers, books, accounts, letters,
photographs, objects or tangible things not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his possession custody or control; or
b) Order any party to permit entry upon designated land or other property in his possession or
control for the purpose of inspecting measuring, surveying or photographing the property or any
designated relevant object or operation thereon. The order shall specify the time, place, and
manner of making the inspection and taking copies and photographs and may prescribe such
terms and conditions as are just.
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Sanctions
The court may, upon application, compel a refusing deponent an answer. If
granted and refusal to answer is without substantial justification, the court
may require the refusing party to pay the proponent the amount of the
reasonable expenses incurred in obtaining the order, including attorney's fees.
If denied and filed without substantial justification, the court may require the
proponent to pay to the refusing party or deponent the amount of the
reasonable expenses incurred in opposing the application, including attorney's
fees.
A refusal to answer after being directed by the court to do so may be
Refusal to be Sworn
Refusal to answer
designated questions
or refusal to produce
documents
or
to
submit to physical or
mental examination
Refusal
to
admit
actionable document
Failure of party to
attend
or
serve
answers
SUBPOENA
Rule 21
General Principle:
It is used during trial.
No subpoena can be issued in the absence of an action pending in court.
Purpose:
To ask witnesses to testify and produce evidence material to the case.
What is a subpoena?
Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of
an action, or at any investigation conducted by competent authority, or for the taking of his deposition.
What is subpoena ad testificandum?
To appear and testify
It is a process requiring a person to attend and to testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the hearing of his deposition.
What is subpoena duces tecum?
To appear and bring the papers and documents. [Papadala ko nalang. Hindi pwede, gusto mo bang macontempt!]
It is a process requiring a person to bring with him any books, documents, or other things under his control.
Who can issue a subpoena?
1. The court before whom the witness is required to attend.
2. The court of the place where the deposition is to be taken.
3. The officer or body authorized by law to do so in connection with investigations conducted by said officer
or body;
4. Any justice of the SC or the CA in any case or investigation pending within the Philippines.
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5.
MTC for the attendance before it of a prisoner even if he is not confined in a municipal jail, unless such
prisoner has been sentenced to death, reclusion perpetua, or life imprisonment and his desired appearance
has not been authorized by the SC.
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The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court.
How is service of subpoena made?
Service of subpoena shall be made in the same manner as personal or substituted service of summons.
The original shall be exhibited and a copy thereof delivered to the person. On whom it is served, tendering
to him the fees for one days attendance and the kilometrage allowed by the rules;
Exception: when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made.
The service must be made also so as to allow the witness a reasonable time for preparation and travel to the
place of attendance.
If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded
shall also be tendered.
If a person is present in court, is there a need for subpoena inorder for him to testify?
No! A person present in court before a judicial officer may be required to testify as if he were in attendance
upon a subpoena issued by such court of officer.
What if a witness did not respond to the subpoena?
General Rule:
The court or judge issuing the subpoena may issue warrant of arrest to the sheriff or his deputy to arrest
the witness and bring him before the court or officer where his attendance is required and the cost of
such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall
determine that his failure to answer the subpoena was willful and without just cause.
Before the witness will be arrested it must be shown to the court or judge that:
1. There was a proof of service of the subpoena.
2. The witness failed to appear.
Exceptions:
1.
2.
Arrest and contempt against a witness shall not apply to a witness who resides more than 100
kilometers from his residence to the place where he is to testify by the ordinary course of
travel.
This is known as the viatory right of a witness. Viatory right of a witness is
applicable only in civil cases!
Arrest and contempt will not apply to a detention prisoner if no permission of the court in
which his case is pending was obtained.
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But whenever appropriate, and in the interest of justice, consolidation of cases in different branches of the
same court or in different courts can be effected.
Consolidation of cases on appeal and assigned to different divisions of the Supreme Court or the Court of
Appeals is also authorized, and generally the case which was appealed later and bearing the highest docket
number is consolidated with the case having the lower docket number.
On consideration of judicial economy and for the convenience of the parties, the Supreme Court [only! Not
other courts] can also order the consolidation of cases involving substantially the same parties and issues
but which have been filed in different courts of equal jurisdiction.
Consolidation as discretionary- consolidation of several cases involving the same parties and subject matter
is discretionary with the trial court.
Consolidation as a matter of duty- when two or more cases are tried before the same judge, or if filed with
different branches of the RTC one of such cases has not been tried.
When there is a consolidation of cases, there is severance because the other cases will be dropped and only
one case remains.
When can there be consolidation of cases?
There can be consolidation of cases when1. The actions involve a common question of law and fact.
2. These cases are pending before the court
3. The court ordered a joint or trial of any or all the matters in issue of the action or it order the
consolidation of all actions.
4. The basis of the order for consolidation of the proceedings is to avoid unnecessary cost or delay.
What is the rule if consolidation of cases involves a change of venue?
Permission of the Supreme is necessary.
What is the rationale of consolidation of cases?
To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets,
and simplify the work of the trial court and save unnecessary costs and expenses.
Consolidation seeks to attain justice with the least expense and vexation to the litigants.
What are the modes of consolidating cases?
1. By recasting the cases already instituted
Reshaping of the case by amending the pleading and dismissing some cases and retaining only one
case. There must be joinder of causes of action and of parties.
2. By consolidation proper or by consolidating the existing cases
It is a joint trial with a joint decision, the cases retaining their original docket numbers.
3. By test-case method
By hearing only the principal case and suspending the hearing on the other cases until judgment has
been rendered in the principal case. The cases retain their original docket number.
SEVERANCE of CASES
Can there be separate trial of any claim, cross-claim, counterclaim or third party complaint instead of
consolidating them?
Yes! Section 2, Rule 31- The court, in furtherance of convenience or to avoid prejudice, may order a separate
trial of any claim, cross-claim, counterclaim, or third-party complaint or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party complaints or issues.
Note:
When separate trial of claims is conducted by the court under this section; it may render separate
judgments on each claim [see section 5, Rule 36].
The permission of separate trials presupposes that the claims involved are within the jurisdiction of
the court. When one of the claims is not within its jurisdiction, the same should be dismissed so that
it may be filed in the proper court.
TRIAL BY COMMISSIONER
Rule 32
Who is a commissioner as contemplated by the Rules of Court?
A commissioner includes a referee, an auditor and an examiner [Section 1].
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Can the parties stipulate on the finding of facts? What is the effect?
When the parties stipulate that a commissioners findings of fact shall be final, only questions of law shall
thereafter be considered [Section 12].
What if a witness unjustifiably refuses a subpoena issued by the commissioner?
The refusal of a witness to obey a subpoena issued by the commissioner or give evidence before him shall be
deemed a contempt of the court which appointed the commissioner [Section 7].
Who shall pay the compensation of commissioner?
The court shall allow the commissioner such reasonable compensation as the circumstances of the case
warrant to be taxed as costs against the defeated party, or appointed, as justice requires.
May a party object to the commissioners report?
Yes! Under the rules, within 10 days from notice of the filing of the report of the commissioner, the parties
may file their objections to the report.
Though it must be noted that objections based on grounds which were available to the parties during the
proceedings before the commissioner, other than objections to the findings and conclusions therein set forth,
shall not be considered by the court unless they were made before the commissioner.
May the parties agree that the findings of the commissioner shall be final?
Yes! And if that is so, the court shall consider only the questions of law arising from the report [Section 12].
TRIAL
Rule 30
General Principles:
General rule: the trial shall be limited to the issues stated in the pre-trial order; Exception: unless the court
specifically directs.
Additional evidence may be offered at the rebuttal stage if it was newly discovered, or omitted through
mistake or inadvertence, or where the purpose is to correct evidence previously offered, subject to the
discretion of the court.
Postponements of trial are addressed to the sound discretion of the court and, in the absence of grave abuse
of discretion, cannot be controlled by mandamus.
What is trial?
An examination, usually involving the offering of testimony before a competent tribunal according to
establish procedures, of facts or law put in issue in a cause for the purpose of determining such issue.
The judicial process of investigating and determining the legal controversies, starting with the production of
evidence by the plaintiff and ending with his closing arguments.
What is the order of trial in Civil Actions?
1. The plaintiff shall adduce evidence in support of his complaint;
2. The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third
party complaint;
3. The third- party defendant if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth
party complaint;
4. The fourth party and so forth, if any shall adduce evidence of the material facts pleaded by them;
5. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in
support of their defense;
6. The parties may then respectively adduce rebutting evidence only, unless the court permits them to adduce
evidence upon their original case; and
7. Upon admission of the evidence, the case shall be deemed submitted for decision.
Note:
This order of trial applies to a regularly controverted claim.
This will not apply if the answer admits the defendants obligation as alleged in the complaint but special
defenses are alleged, plaintiff does not have to present evidence since judicial admissions do not require
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proof, and it should be the defendant who should forthwith present evidence in support of his special
defenses.
This order of trial will also not apply if there was a separate trial of the counterclaim, cross-claim, thirdparty complaint, etc or if the court for special reasons otherwise directs.
Can the parties agree on the statement of facts? What is the effect?
Yes! Section 6, Rule 30.
The parties to any action may agree in wiring, upon the facts involved in the litigation. The parties may also
stipulate verbally in open court. Such stipulations are binding unless relief therefrom is permitted by the
court on good cause shown, such as error or fraud.
The parties may submit the case for judgment on the facts agreed upon, without the introduction of
evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts
in such order as the court shall prescribe.
Effect: agreed statement of facts is conclusive on the parties as well as on the court. Neither of the parties
may withdraw from the agreement, nor may the court ignore the same.
Note:
Counsel cannot stipulate on what their respective evidence consists of and ask that judgment be
rendered on the basis of such stipulation.
Stipulations of facts are not permitted in actions for annulment of marriage.
How will the party know of the scheduled trial?
Upon the entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such
manner as shall ensure his receipt of that notice at least 5 days before such date [Section 1].
Can the court adjourn trials?
Yes! A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient
transaction of business may require.
However, the court has no power to adjourn a trial for a period longer than 1 month from each
adjournment, nor more than 3 months in all, except when authorized in writing by the court administrator.
Can trials be postponed?
Yes, subject to the following conditions:
1. There must be a motion for postponement filed by any of the party.
2. The motion for postponement should not be filed on the last hour especially when there is no reason
why it could not have been presented earlier.
3. Postponement is not a matter of right. It is addressed to the discretion of the court.
REQUISITES OF MOTION TO POSTPONE TRIAL FOR ABSENCE OF EVIDENCE [Section 3]
1. A motion for postponement stating the ground relied upon must be filed;
2. The motion must be supported by an affidavit or sworn certification showing:
a. The materiality or relevancy of the evidence; and
b. That due diligence has been used to procure it.
Note:
If the adverse party admits the facts given in evidence, the trial shall not be postponed even if he
reserves the right to object to admissibility of the evidence.
REQUISITES FOR MOTION TO POSTPONE TRIAL FOR ILLNESS OF PARTY OR COUNSEL [Sec. 4]
1. A motion for postponement stating the ground relied upon must be filed;
2. The motion must be supported by an affidavit or sworn certification showing:
a. That the presence of the party or counsel at the trial is indispensable; and
b. That the character of his illness is such as to render his non-attendance excusable.
What should be done to any statement of the judge during hearing or trial?
During the hearing or trial of the case any statement made by the judge with reference to the case, or to any
of the parties, witness or counsel, shall be made of record in the stenographic notes [Section 7].
Who shall receive evidence?
General rule: The judge must himself personally receive and resolve the evidence of the parties.
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Exception: the reception of evidence may be delegated under the following conditions:
1. The delegation may be only in default or ex parte hearings or an agreement in writing by the parties;
2. The reception of evidence shall be made only by the clerk of court who is a member of the bar;
3. Said clerk shall have no power to rule on objections to any question or to the admission of evidence
or exhibits;
4. He shall submit his report and transcripts of the proceedings, together with the objections o be
resolved by the court, within 10 days from the termination of the hearing.
State the nature of the defect if any, of the practice of referring a case to the clerk of court to receive evidence and
report the same to the court?
The defect is procedural which can be waived by the express or implied consent of the parties. If a party
objects thereto, he must do it on time and in the trial.
DEMURRER TO EVIDENCE
Rule 33
General principles:
The provision of the Rules governing demurrer to evidence does not apply to an election case [Gementiza
vs. COMELEC, 353 SCRA 724].
An order denying a demurrer to evidence is interlocutory and is therefore, not appealable. It can however
the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial
authority.
Leave of court is not required before filing a demurrer.
Where the defendants motion is sustained and the case is dismissed under this Rule, such order would be
an adjudication on the merits, hence the requirement in Section 1, Rule 36 that said judgment should state
clearly and distinctly the facts and the law on which it is based, should be complied with.
What is demurrer to evidence?
A demurrer to evidence is a motion to dismiss o the ground of insufficiency of evidence and is presented
after the plaintiff rests his case.
When to avail demurrer to evidence?
A demurrer to evidence can be filed after the plaintiff has completed the presentation of his evidence. As
such the defendant need not present his evidence.
Who can avail of demurrer to evidence?
Any defendant in a case.
What is the ground for filing a demurrer to evidence?
The only ground is that upon the facts and the law the plaintiff has shown no right of relief. Evidence of the
plaintiff is insufficient to entitle him to relief.
Note:
Demurrer to evidence differs from Motion to Dismiss in Rule 16 in this wise: Motion to Dismiss is
grounded on preliminary objections and is presented at the outset of the case, i.e. generally before a
responsive pleading is filed by the movant and within the period for the filing thereof.
What is the effect of filing a demurrer to evidence?
If denied- the defendant retains the right to present their own evidence.
If granted- the defendant need not present his evidence and the case is dismissed.
Note:
However, it is noteworthy that if the motion is granted and the order of dismissal is reversed on
appeal, the movant losses his right to present evidence on his behalf. As such the movant cannot
appeal the decision of the appellate court.
In the case of reversal, the Appellate Court shall render judgment for the plaintiff based on the
evidence alone. Corollarily, it is not correct for the appellate court reversing the order granting the
demurrer to evidence to remand the case to the trial court for further proceedings. The appellate
court should, instead of remanding the case, render judgment on the basis of the evidence
submitted by the plaintiff.
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Denied
Acquittal
Granted
Denied
Acquittal
Denied
Case dismissed
1.
2.
3.
4.
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Every court having jurisdiction to render a particular judgment has inherent power and authority to
enforce it and to exercise equitable control over such enforcement. The court has authority to inquire
whether its judgment has been executed, and will remove obstruction to the enforcement thereof. Such
authority extends not only to such orders and such writs as may be necessary to carry out the judgment into
effect and render it binding and operative, but also to such orders as may be necessary to prevent improper
enforcement of the judgment.
Principle of Stare Decisis et non quieta movere- It means that once the case is decided be the Supreme
Court as the final arbiter of any justifiable controversy one way or another, then another case involving
exactly the same point at issue should be decided in the same manner.
Who renders a judgment?
What if the judge who rendered the judgment is not the judge who heard the case, can there be a valid
judgment? Yes! There is no requirement in the Rules requiring the same. Though, a judge permanently
transferred to another court of equal jurisdiction can render a decision on a case in his former court which
was totally heard by him and submitted for decision, with the parties having argued the case.
What is a judgment?
It is the final consideration and determination by a court of the rights of the parties as those rights which
presently exist upon matters submitted in an action or proceeding.
What are the requisites of a valid judgment?
1. A final judgment or final order determining the merits of the case shall be in writing.
2. Personally and directly prepared by the judge;
3. Stating clearly and distinctly the facts and the law on which it is based;
4. The judgment must be signed by him;
5. The judgment must be filed with the clerk of court.
Note:
It is the filing of the signed decision with the Clerk of Court, and not its pronouncement in open court
that constitutes rendition of judgment.
If the decision is sent by the judge by registered mail, it is considered filed in court as of the date of its
receipt by the clerk, and not of the date of its posting or mailing.
What is the effect if a judgment was not based on law or facts?
It is void. In one case it was held that an order of dismissal of a petition for Habeas Corpus without stating
the reasons or basis therefor is null and void for having been rendered in violation of the constitutional
mandate that no decision shall be rendered by any without expressing therein clearly and distinctly the facts
and law upon which it is based.
What must a judgment contain?
A judgment must contain two parts:
1. The body of the judgment or the ratio decidendi, and
2. The dispositive portion of the judgment or fallo.
Note:
The body of the decision is not part of the judgment that is subject to execution but the fallo because it is
the latter which is the judgment of the court.
The fallo or dispositive portion of a decision should state whether the complaint or petition is granted or
denied, the specific relief granted, and the costs.
It is the dispositive part of the judgment that actually settles and declares the rights and obligations of
the parties, finally definitively, and authoritatively.
What is the rule to be followed if there is a conflict between the dispositive portion of the decision and the body
thereof?
General rule: The dispositive portion controls irrespective of what appears in the body of the decision.
Exception: however an exception is recognized:
1. Where the inevitable conclusion from the findings of fact in the opinion is so indubitable and clear as to
show that there was mistake in the dispositive portion OR;
2. Where explicit discussion and settlement of the issue is found in the body of the decision.
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It is when there is no appeal or motion for new trial or reconsideration is filed within the time provided in
the Rules, the Clerk of court enter into the book of entries of judgment, the judgment or order of the court.
The date of finality of the judgment or final order shall be deemed to be the date of its entry.
What shall be entered in the book of entries of judgment?
Only the dispositive part of the judgment or final order and not the whole judgment or final order.
What shall the Clerk do after such entry?
1. The clerk shall sign the entry;
2. Certifies that such judgment or final order has become final and executory.
When does a final judgment or order become final and executory?
Upon the lapse of 15 days from the date of notice to the party of such judgments, if such party does not
employ valid remedies to toll the running of such period.
Illustration:
Plaintiffs counsel
Defendants counsel
Judgment by Default
Judgment on the Pleadings
Summary Judgment
Judgment upon Compromise
Judgment upon Consent
Judgment on JDR Proceedings
JUDGMENT BY CONFESSION
Judgment by confession is not a plea but an affirmative and voluntary act of the defendant himself and the
court exercises a certain amount of supervision over the entry of judgment, as well as equitable jurisdiction
over their subsequent status.
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While a judgment upon confession may be rendered when the defendant appears in court or files a pleading
expressly agreeing to the plaintiffs demand, it has been held that there is no law in this jurisdiction which
recognizes a judgment note.
Judgment note- a promissory note wherein the maker authorizes in advance, on warrant of attorney, a
confession of judgment against him in the event of non-payment of the note on its maturity. This is
considered void as being contrary to public policy, since the promisor bargains away his day in court and
this might be a source of abuse and oppression.
JUDGMENT BY CONSENT
Judgment by consent is one where the provisions and terms of which are settled and agreed upon by the
parties to the action, and which is entered in the record by the consent of the court.
There must be an unqualified agreement among the parties to be bound by the judgment on consent before
said judgment may be so entered and the court does not have the power to supply terms, provisions or
essential details not previously agreed to by the parties.
JUDGMENT UPON COMPROMISE
As a rule, a judgment upon compromise is immediately executory in the absence of a motion to set the same
aside on the ground of fraud, mistake, etc., and if such motion is made and denied, appeal may be taken
from such order of denial.
The Supreme Court held that to be entitled to appeal from a judgment on compromise, a party must not
only move to set aside or annul the compromise agreement itself. A judgment rendered pursuant to a
compromise is not appealable and has the effect of res judicata from the moment it is rendered.
If the supposed nullity is based on the parties alleged lack of consent to the compromise agreement, the
remedy is to move for its reconsideration and to appeal from the judgment if the motion is denied; or if the
judgment is already final and executory, to file petition for relief under Rule 38.
In a case, it was held that where a judgment based on a compromise is sought to be enforced against a
person who was not a party thereto, he may file an original petition for certiorari to quash the writ of
execution. He could not move to have the compromise set aside and then appeal from the order denying the
motion since he is not a party to the compromise or the judgment therein. A petition for relief would be an
adequate remedy as the execution was already being carried out.
JUDGMENT NUNC PRO TUNC [now for then]
Judgment nunc pro tunc is rendered to enter or record such judgment as had been formerly rendered but has
not been entered as thus rendered. Its only function is to record some act of the court which was done at a
former time, but which was not then recorded, in order to make the record speak the truth, without any
changes in substance or in any material respect.
It may be availed to correct judicial errors such as to render a judgment with the court ought to have
rendered in place of the one it did erroneously render or to supply non-action by the court however
erroneous the judgment may have been.
Can there be a judgment for or against one or against one or more of several parties?
Yes! Judgment may be given for or against one or more of several plaintiffs, and for or against one or more
of several defendants. When justice so demands, the court may require the parties on each side to file
adversary pleadings as between themselves and determine their ultimate rights and obligations.
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Par. 2, Section 3, Rule 41- the period of appeal shall be interrupted by a timely motion for reconsideration or
new trial.
What is the effect if the Motion for Reconsideration is granted?
If the Motion for Reconsideration is granted the court may amend or modify such judgment or final order
accordingly.
What is the effect if the Motion for reconsideration is denied?
If the Motion for Reconsideration is denied, the movant has a fresh period of 15 days from receipt or notice
of the order denying or dismissing the motion for reconsideration within which to file a Notice of Appeal of
the judgment or final order.
What is the remedy if Motion for Reconsideration is denied?
The remedy of the movant is to appeal the judgment or final order not the order denying the Motion for
Reconsideration or Motion for New Trial.
In the appeal, assign as one of the errors the denial of the Motion for Reconsideration.
Note:
The movant has a fresh period of 15 days from receipt or notice of the order denying or dismissing the
motion for reconsideration within which to file a notice of appeal. This new period becomes significant
if either a motion for reconsideration or a motion for new trial has been filed but was denied or
dismissed.
This fresh period rule applies not only to Rule 41 governing appeals from RTC but also to Rule 40
governing appeals from MTC to RTC, Rule 42 on petitions for review from the RTC to the CA, Rule 43
on appeal from quasi-judicial agencies to the CA, and Rule 45 governing appeals by certiorari to the SC.
Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules to afford
fair opportunity to review the case and in the process, minimize errors of judgment.
Obviously the 15 day period may be availed of only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the original appeal period provided in Rule 41, as held in
the case of Neypes vs. CA [Sept. 14, 2005]. The Neypes ruling shall not be applied where no motion for
new trial or motion for reconsideration has been filed in which case the 15 day period shall run from
notice of the judgment.
The Supreme Court ruled in one case that this fresh period of appeal is applicable in criminal cases.
Is second Motion for Reconsideration allowed?
No! Except only in the Supreme Court.
Par 2 Section 5, Rule 37- No party shall be allowed a second motion for reconsideration of a judgment or
final order.
MOTION FOR NEW TRIAL [TRIAL DE NOVO]
Litigated motion.
When to file a Motion for New Trial?
Within the period for taking an appeal, that is within 15 or 30 days from notice of the judgment.
What is the ground for filing a Motion for New trial?
1. Fraud, accident, mistake, or excusable negligence.
This must be with affidavit of merits executed by those who have knowledge of FAME. It must be
under oath.
If these grounds were used in a motion to lift order of Default it cannot be used as a ground for trial de
novo where the circumstances are the same.
2. Newly discovered evidence.
Requisites: for newly discovered evidence to warrant new trial:
a. Must have been discovered after trial;
b. Could not have been discovered and produced at the trial despite reasonable diligence;
c. And if presented would probably alter the result of the action.
FRAUD
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Section 8, Rule 37- An order denying a Motion for New Trial is not appealable, the remedy being an appeal
from the judgment subject of the Motion for New Trial.
What is the effect if a Motion for New Trial does not satisfy the Requirement of Rule 37?
It is considered as pro forma and does not suspend the period to appeal.
A Motion for New Trial is considered as pro-forma where:
1. It is based on the same ground as that raised in a preceding motion for new trial or reconsideration
which has already been denied.
2. It contains the same arguments and manner of discussion appearing in the prior opposition to the
motion to dismiss and which motion was granted.
3. The new ground alleged in the second motion for new trial already existed, was available and could
have been alleged in the first motion for new trial which was denied.
4. It is based on the ground of insufficiency of evidence or that the judgment is contrary to law but
does not specify the supposed defects in the judgment.
5. It is based on the ground of fraud, mistake or excusable negligence but does not specify the facts
constituting the grounds and/ or is not accompanied by an affidavit of merits. Note that fraud and
mistake must be alleged with particularity.
Can there be second Motion for New Trial?
Yes if there I a new ground other than the ground used in the first Motion for New Trial.
Section 5, Rule 37- xxx. A second Motion for New Trial, based on a ground neither existing nor available
when the first motion was made, may filed within the time herein provided excluding the time during
which the first motion had been pending.
Can there be a partial New Trial or Partial MR?
Yes, Section 7, Rule 37- If the grounds for a motion under this Rule appear to the court to affect the issues
as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it
the court may order a new trial or grant reconsideration as to such issues if severable without interfering
where either a several or separate judgment is proper.
What is the effect of Partial New Trial or Partial MR?
Section 8, Rule 37- when less than all of the issues are ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the enforcement of such judgment or final order.
Where one party files a motion for New Trial or Reconsideration and the other party seeks to perfect an
appeal from the said decisions, the court should withhold action of the appeal until after the motion for
New Trial or Reconsideration shall have been resolved.
Can a party file a MR and Motion for New Trial at the same time? What shall be the first to be entertained by the
court?
Yes. The Motion for New Trial because there is a possibility that the decision sought to be reconsidered can
be vacated.
MOTION FOR RE-OPENING OF TRIAL
Must be filed after the trial but before decision.
Litigated Motion.
When to file? At any time after trial but before decision is rendered.
Who can file? Any party
What are the grounds for filing a Motion for Re-opening of trial?
Any ground because it is discretionary upon the court.
What is the effect if the Motion for Re-opening of Trial is granted?
The case is not deemed submitted for decision
What is the effect if the Motion for Re-opening of Trial is denied?
Appeal the decision and assign as one of the error the denial of the Motion for Re-opening of trial.
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Ordinary Appeal
MODES OF APPEAL
The appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction
shall be taken by filing a notice of appeal with the court which rendered the judgment or
final order appealed from and serving a copy thereof upon the adverse party. No record
on appeal shall be required except in special proceedings and other case of multiple or
separate appeals where the law or the Rules so require. In such cases, the record on appeal
shall be filed and served in like manner.
The appeal to the CA in cases decided by the RTC in the exercise of its appellate
jurisdiction shall be by petition for review in accordance with Rule 42.
In all cases where only questions of law are raised or involved, the appeal shall be to the
SC by petition for review on certiorari in accordance with Rule 45.
PERIOD OF APPEAL
Within 15 days after notice to the appellant of the judgment or final
order appealed from.
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from.
Where a record on appeal is required, the appellants shall file a
notice of appeal and a record on appeal within 30 days from notice
of the judgment or final order.
Ordinary Appeal
Petition for Review
Petition for Review on Certiorari
Mode of Appeal
Ordinary appeal
Notice of Appeal
Record on Appeal
Appeal by Certiorari
receipt
of
receipt
of
Within 15
judgment.
receipt
of
days
from
PERFECTION OF APPEAL
For ordinary appeals from MTC to the RTC and from RTC to the Perfection of appeal by Petition for
CA
review under Rule 42.
a. By notice of appeal- upon filing of the notice of appeal in Upon the timely filing of a petition for
due time.
review and the payment of the
b. By record on appeal- upon the approval of the record on corresponding docket and other lawful
appeal filed in due time; in either case, prior to the fees.
transmittal of the original record or the record on appeal,
the court may issue orders for the protection and
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Notice of appeal applies individually and only to each of the parties so circumstanced since the
timeliness of their recourse as appellate remedy depends on when they respectively received a
copy of the judgment or final order.
If the appeal is by Notice of Appeal, when does the court lose jurisdiction over the case?
Section 9 par. 3, Rule 41- it loses jurisdiction over the case upon the perfection of the appeal filed in due time
and the expiration of the time to appeal of the other parties.
It loses jurisdiction where some of the parties made a perfected appeal ad some of them did not appeal and
the period to the same expired.
Collorarily: Residual jurisdiction- the trial court can still entertain appropriate actions before it as long as it
possesses the records of the appealed case. Once the trial court transmits the records to the appellate court, it
cannot entertain actions regarding the case.
When is a RECORD ON APPEAL required?
Section 3, Rule 40- a record on Appeal shall be required only in Special Proceeding and in other cases of
multiple or separate appeals.
It also includes an appeal from1. Order of expropriation in eminent domain proceedings.
2. Judgment for recovery of property or partition with accounting.
3. Judgment for or against one or more of several defendants leaving the action to proceed against the
others.
4. Foreclosure of mortgage.
What is the form and contents of a Record on Appeal?
A record on appeal contain the following:
1. The full names of all the parties to the proceedings shall be stated in the caption of the record on
appeal and it shall include the judgment or final order from which the appeal is taken.
2. It shall include in chronological order copies of only such pleadings, petitions, motions and all
interlocutory orders as are related to the appealed judgment or final order for the proper
understanding of the issue involved.
3. It must be shown that the appeal was perfected on time
As per Section 1(a), Rule 50- The requirement that the record on appeal must show on
its face that the appeal was perfected on time is mandatory and jurisdictional and if not
complied with, the appellate court acquires no jurisdiction and the appeal must be
dismissed.
4. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the
evidence, testimonial and documentary, taken upon the issue involved.
5. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it
was identified when admitted or offered at the hearing and the testimonial evidence by the names
of the corresponding witness.
6. If the whole testimonial and documentary evidence in the case is to be included, a statement to that
effect will be sufficient without mentioning the names of the witnesses of the numbers or letters of
exhibits.
7. Every record on appeal exceeding 20 pages must contain a subject index.
If appeal is by record on Appeal, when does the court loses jurisdiction over the case?
Par. 4, Section 9, Rule 41- in appeals by Record on Appeal, the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to
appeal of the other parties.
When is an appeal via Record on Appeal perfected?
Par 2, Section 9, Rule 41- a partys appeal by Record on Appeal is deemed perfected as to him with respect
to the subject matter thereof upon the approval of the record on Appeal filed in due time.
Within what period and to whom should the appellant pay the appeal fees?
Section 5, Rule 40- within the period for taking an appeal, the appellant shall pay to the clerk of court of the
court which rendered the judgment or final order appealed from, the full amount of the appellate court
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docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together
with the original record of the record on appeal, as the case may be.
What are the effects of the perfection of an appeal?
1. In appeals by Notice of Appeal, the court loses jurisdiction over the case upon the perfection of the appeals
filed in due time and the expiration of the time to appeal of the other parties.
2. In appeals by Record on Appeal, the court loses jurisdiction only over the subject matter thereof upon the
approval of the Record on Appeal filed on due time and the expiration of the time to appeal by the other
parties.
State the procedure after the RTC receives the complete record or the record of appeal from the inferior court?
1. Upon receipt of the complete record or the record on appeal the clerk of court of the RTC shall notify the
parties of such fact.
2. Within 15 days from such notice, it shall be the duty of the appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the
adverse party. Within 15 days from receipt of the appellants memorandum, the appellee may file his
memorandum. Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal.
Who are required to file their memorandum?
Appellant- yes
Appellee- No. Why? He can adopt the decision of the court a qou as his memorandum.
What is the effect if the appellant failed to submit his memorandum despite notice?
In one case the SC held that the appeal was deemed abandoned when petitioners failed to submit their
memorandum despite sufficient time given to them by the court.
Why? A memorandum on appeal or an appeal brief is vital to an appeal for only errors specifically assigned
and properly argued in the brief or memorandum will be considered in the decision on the merits, except
those affecting jurisdiction over the subject matter as well as plain and clerical errors. Hence the lack of a
memorandum on appeal is ground for the dismissal of an appeal.
When a case on appeal deemed is submitted for decision?
1. Upon filing of the memorandum for the appellee or the expiration of the period o do so, the case shall be
considered submitted for decision.
2. The RTC shall decide the case on the basis of the entire record of the proceeding had in the court of origin
and such memoranda as are filed.
When and why multiple appeals allowed?
Multiple appeals are allowed is special proceedings, in actions for recovery of property with accounting, in
action for partition of property with accounting; in the special actions of eminent domain and foreclosure of
mortgage.
The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to
proceed in the event that a separate and distinct issue is resolved by the court and to be final.
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3.
The appeal to the Court of Appeals in cases decided by the RTC in the exercise of its appellate
jurisdiction shall be by Petition for Review in accordance with Rule 42.
The ground shall be question of fact, of law, or on mixed question of fact and law.
Appeal by Certiorari
In all cases where only questions of law are raised or involved the appeal shall be to the SC by
Petition for Review on Certiorari in accordance with Rule 45.
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3.
been submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact
or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due
course to the petition.
Section 7, Rule 42- whenever the Court of Appeals deems it necessary, it may order the clerk of court of the
RTC to elevate the original record of the case including the oral and documentary evidence within 15 days
from notice.
Except in civil cases deiced under the Rules on Summary procedure, the appeal shall stay the
judgment of final orders unless the Court of Appeals, the law, or these Rules shall provide
otherwise.
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Question of law- exists when there is a doubt or controversy as to what the law is on a certain state of facts.
Question of fact- exists when the doubt of difference arises as to the truth of falsehood of facts.
One test whether the appellate court can determine the issue raised without reviewing or evaluating the
evidence, in which case it is a question of law, otherwise it will be a question of fact.
Question of law must not involve the examination of the probative value of the evidence presented.
Is the finding of the CA conclusive to the SC?
General rule: Yes, the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal
to the SC provided they are borne out by or are based on substantial evidence.
Exceptions: Findings of fact of the CA may be reviewed by the SC on appeal by certiorari1. When the inference made is manifestly mistaken, absurd or impossible.
2. Where there is grave abuse of discretion in the appreciation of facts.
3. When the conclusion is a finding grounded entirely on speculations, surmises or conjectures.
4. When the judgment is based on a misapprehension of facts.
5. When the findings of fact of the CA are conflicting.
6. When the CA in making its findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee.
7. Where the CA manifestly overlooked certain relevant facts not disputed by the parties and which if
properly considered, would justify a different conclusion.
8. Where the findings of fact of the CA are contrary to those of the trial court, or are mere conclusions
without citation of specific evidence, or where the facts set forth by the petitioner are not disputed
by the respondent or where the finding of fact of the CA are premised on absence of evidence but
are contradicted by the evidence on record.
When to file a petition for certiorari?
Section 2, Rule 45- the petition shall be filed within 15 days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioners motion for new trial or reconsideration filed in
due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and
other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for
justifiable reasons grant an extension of 30 days only within which to file the petition.
Is payment of docket fees necessary for acquiring jurisdiction?
Section 3, Rule 45- unless he has theretofore done so, the petitioner shall pay the corresponding docket and
other lawful fees to the clerk of court of the SC and deposit the amount of 500.00 for costs at the time of the
filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse
party shall be submitted together with the petition.
What are the contents of a petition for certiorari?
Section 4, Rule 45- the petition shall be filed in 18 copies, with the original copy intended for the court being
indicated as such by the petitioner, and shalla. State the full name of the appealing party as the petitioner and the adverse party as
respondent, without impleading the lower courts or judges hereof either as petitioners or
respondents.
b. Indicate the material dates showing when notice of the judgment or final order or resolution
subject thereof was received, when a motion for new trial or reconsideration if any, was filed
and when notice of the denial thereof was received;
c. Set forth concisely a statement of the matters involved, and the reasons or arguments relied on
for the allowance of the petition;
d. Be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment
or final order or resolution certified by the clerk of court a qou and the requisite number of
plain copies thereof, and such material portions of the record as would support the petition;
e. Contain a sworn certification against forum shopping.
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contents of an the documents which should accompany the petition shall be sufficient ground for the
dismissal thereof.
The SC may on its own initiative deny the petition on the ground that the appeal is without merit, or is
prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require
consideration.
What is the action of the court upon receipt of the petition?
Section 7, Rule 45- for purposes of determining whether the petition should be dismissed or denied
pursuant to Section 5 of this Rule, or where the petition is given due course under Section 8 hereof, the SC,
may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem
necessary within such periods and under such conditions as it may consider appropriate, and impose the
corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or
non-compliance with the conditions therefor.
Section 8, Rule 45- if the petition is given due course, the SC may require the elevation of the complete
record of the case or specified parts thereof within 15 days from notice.
When is a review necessary?
Section 6, Rule 45- a review is not a matter of right, but of sound judicial discretion, and will be granted
only when there are special and important reasons therefor. The following, while neither controlling nor
fully measuring the courts discretion, indicate the character or the reasons which will be considered:
a. When the court a qou has decided a question of substance, not theretofore determined by the SC,
or has decided it in a way probably not in accord with law or with the applicable decisions of the
SC; or
b. When the court a qou has so far departed from the accepted and usual course of judicial
proceedings, so far sanctioned such departure by a lower court, as to call for an exercise of the
power of supervision.
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proceed to hear and determine the case as if a timely motion for new trial or reconsideration had been
granted.
Section 7, Rule 38- where the denial of an appeal is set aside, the lower court shall be required to give due
course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been
made.
What is the remedy in order to prevent the execution of the final order?
Section 5, Rule 38- the court in which the petition is filed, may grant such preliminary injunction as may be
necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor
of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case
upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason
of the issuance of such injunction or other proceedings following the petition; but such injunction shall not
operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of
the petitioner.
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